Suing Media For Emotional Distress: A MultiMethod Analysis of Tort Law Evolution
Terrance C. Mead*
In an article printed twenty years ago, Wade1 examined the fields
of defamation and invasion of privacy and suggested the latter action
would eventually supplant the first only to be itself supplanted by the
developing tort of intentional infliction of emotional distress.2 This
theory holds strong logical appeal, given the already overlapping application of these three t h e ~ r i e s . ~
For several reasons, any movement toward greater use of the emotional distress tort should be of significant concern to journalists.
Pleading this tort, either on its own or in combination with defamation
and privacy claims, may allow plaintiffs a sort of "trump card," circumventing defenses which, only a few years ago, allowed one writer to
* Associate with the firm of Gust, Rosenfeld, Divelbess & Henderson, Phoenix, Arizona.
B.A., Social Change and Development, 1976, University of Wisconsin-Green Bay; J.D., 1981,
M.A., Joumalism, 1982, University of Wisconsin-Madison; Reporter and City Editor, 1978-80,
Green Bay (Wis.) News-Chronicle.
This article is derived from the author's master's thesis, for which he gratefully acknowledges
the assistance of his advisor, Professor William Hachten, Professors Jack McLeod, Mary AM
Yodelis-Smith and James Fosdick, and student associates at the Mass Communications Research
Center, all of the University of Wisconsin-Madison, Department of Journalism.
1. Wade, Defamation and the Right ofPrivacy, 15 VAND.L. REV.1093 (1962). (Dean of
Vanderbilt Law School). Wade's examination focused on two branches of the invasion of privacy
tort-pblic disclosure of embaaassing private facts and publicity tending to place a person in a
false hght in the public eye. He then summarized recent cases to show how the invasion of privacy
tort could supplant the defamation ton. It was in his last paragraph that Wade provocatively
suggested this was only part of a larger movement within the field of dignitary torts:
If the law of privacy then absorbs the law of defamation, it will merely afford a complete
"unfolding" of the idea or principle behind that law. Indeed, there is real reason to
conclude that the principle behind the law of privacy is much broader than the idea of
privacy itself, and that the whole law of privacy will become a part of the larger tort of
intentional infliction of mental suffering. That tort would then absorb established torts
like assault and defamation and invasion of the right of privacy and join them together
with other innominate torts to constitute a single, integrated system of protecting plaint i a s peace of mind against acts of the defendant intended to disturb it.
Wade,mpra, at 1124-25. Justice Marshall, in his opinion for the Court in Curlis v. Loether, apparently endorsed such an evolution:
An action to redress racial discrimination may also be likened to an action for defamation or intentional infliction of mental distress. Indeed, the contours of the latter tort are
still developing, and it has been suggested that "under the logic of the common law
development of a law of insult and indignity, racial discrimination might be treated as a
dignitary tort."
415 U.S. 189, 195 n.10 (1974) (quoting C. GREGORY& H. KALVEN,CASESAND MATERIALS
ON
TORTS961 (2d ed. 1969)).
2. "One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm." RESTATEMENT
(SECOND)OF TORTS5 46(1)
(1977).
3.. ,See infra text accompanying notes 92-139.
19831
Suing the Meda
claim "that the law of libel has been all but re~ealed."~
For instance, plaintiffs could rely upon the emotional distress tort
to avoid relatively short statutes of limitations applied to libel suits;
increase damage awards or circumvent judicial barriers to punitive
damage awards; provide an area of judicial expansion for privacy law,
which seems increasingly hindered by legal definitions falling short of
the popular conception of personal privacy; appeal to the sympathy of
jurors who, restricted by courts' instructions, may seek alternative
"pegs" upon which to hang money awards; and avoid first amendment
protections now accorded in defamation and, to some extent, in privacy
actions.
The simplicity and relative youth of this tort allow it to be applied,
in theory, to a wide variety of situations.5 Commenting on the tort in
1939, Prosser wrote, "[Tlhe law is clearly in a process of growth, the
ultimate limits of which must be as yet only a matter of c~njecture."~
In a sense, those limits remain a matter of conjecture. As with most
tort theories, limits of its application often are tested and sometimes
stretched by imaginative members of the plaintiffs' bar. Yet the compass of the emotional distress tort's applicability includes a limited,
spotty, and ill-defined landscape, probably due to the strict pleading
requirements imposed by court^.^ It is the purpose of this article to
commence an examination of this landscape as it affects media
defendants.
A. Mixed Approach
Because the evolution of law has both a theoretical nature-that is,
the principles which guide legal decision-making have a logical existence and force of their own-and a social nature since law is an asDect
of social life, an examination of legal evolution properly entails discussion of social forces as well as legal principles and procedures. The two
natures are not easily ~eparated.~
Neither is the lawyer's decision in a
I
4. Coonradt, The L w of Libel Has Been All But Repealed, THEQUILL,Feb. 1972, at 16.
5. Eg., Hanke v. Global Van Lines, Inc., 533 F.2d 396 (8th Cir. 1976) (100-day delay in
delivering plaintiffs furniture); Foster v. Trentham's, Inc., 458 F. Supp. 1382 (E.D. Tenn. 1978)
(malicious prosecution); Rogers v. Williard, 144 Ark. 587, 223 S.W. 15 (1920) (defendant
threatened plaintiffs husband with a gun in her presence); LaSalle Extension Univ. v. Fogarty,
126 Neb. 457, 253 N.W. 424 (1934) (debt collection practices); Samms v. Eccles, 11 Utah 2d 289,
358 P.2d 344 (1961) (sexual harassment).
6. Prosser, Intentional Inflcfion of Mental Suferin~A New Tort, 37 MICH. L. REV.874, 874
(1939).
7. "The stringent requirements for stating a cause of action usually render this approach
[pleading intentional infliction of emotional distress] useless to the prospective plaintiff in a situation involving the mere publication of words." R. SACK,LIBEL, SLANDER,
A N D RELATED
PROBLEMS
474 (1980).
8. Of course, the two are separate for study purposes only. The concepts forming legal
theory are, themselves, socially derived. Seegeneral& W. HOHFELD,
FUNDAMENTAL
LEGALCONCEPTIONS, AS APPLIEDIN JUDICIALREASONING
(1919).
\
,
26
Washburn Law Journal
[Vol. 23
particular case predicated upon one nature to the exclusion of the
other.
For instance, the issue of "damages," or injuries for which damages are allowed, has both theoretical and social implications which
must be examined. Legal principles define the injuries for which damage awards are allowed in specific cases. On the other hand, awards for
emotional distress depend on social aspects of judicial and juror acceptance that such injuries are real.9 The apparent growth and acceptance
of the emotional distress theory by the barlo suggest lawyers intuit a
public acceptance that injuries to the person can be other than physical.
In a sense, readers, listeners, and viewers seem more willing to accept
the notion they can be emotionally injured by what is printed or broadcast and, as jurors, more willing to compensate others for those injuries.
In the same fashion, discrepancies between legal definitions and
social conceptions must be evaluated and either exploited or minimized
by the lawyer/advocate. As an example, legal definitions of what constitutes an actionable invasion of privacy may not coincide with the
public perception, and a plaintiffs claim, of what areas of privacy
should be legally protected. The lawyer's options, in a specific case, are
to argue for an expanded legal definition and/or plead a more inclusive
tort. Idiction of emotional distress appears to provide that second option, which may be easier to prove and more assured of success. For
these reasons, some discussion of public opinion and attitudes is necessary, though independent collection of public opinion or attitude evidence lies outside the scope of this article.
Examination of legal development will proceed along two fronts,
often simultaneously. First, actual cases in which the tort or emotional
distress damages have been pleaded need to be analyzed to learn how
the tort fares both in particular cases and in relation to all other defamation-type suits brought against media defendants. Second, legal theory, the logic which Wade suggested should compel greater reliance on
the emotional distress tort, will be examined to determine how it both
encourages and restricts use of the tort.
B. A Brif History of the Emotional Distress Tort
Defamation, the tort with the longest pedigree, is supported by
centuries of English and American common law. Standards are relatively complex and depend on such factors as the source of the injury
(private person, medium, privileged party, etc.) and the type of com-
- -
-
9. See Smith, Relation of Emotions to InBry and Disease: Legal Liabilityfor Psychic Stimuli
30 VA. L. REV.193 (1944).
10. See infra Table 1.
19831
Suing rhe Media
27
munication (written versus oral)." Since the 1964 decision in New
York Times Co. v. Sullivan, l 2 the field of defamation law has become
largely constitutionalized, with courts providing another stratum of impediments to plaintiffs. l3
Invasion of privacy actions have developed only since the first of
this century, in part, to remedy perceived inadequacies in defamation
law but, primarily, to protect an individual's peace of mind from unwarranted intrusions.14 The rubric attaches to various causes of action,
reduced in 1960 to four categories by Prosser: placing the victim in a
false light; giving publicity to embarrassing personal facts; intrusion
upon one's seclusion; and commercial appropriation of a person's name
or likeness.15 The first two are most akin t o defamation. Though defined largely by common law, invasion of privacy as a cause of action
has been created in some states by legislative action after courts have
been reluctant to act.16 Standards continue to develop, particularly in
cases in which constitutional issues are raised, with the victim's right to
privacy generally balanced against society's interest in being informed
of the particular matter.17
The emotional distress tort differs considerably from defamation
theory. It not only consists of fewer elements which must be alleged to
plead aprimafacie case, but clearly is designed to protect the victim's
emotional well-being, as distinct from the reputational interests historically protected in defamation law. l 8 Further, the examination in such a
suit focuses more clearly upon the defendant's conduct, with only the
most "extreme and outrageous" conduct leading to liability. l9
11. See penerafly C. GREGORY.H. KALVEN.& R. EPSTEIN.CASESA N D MATERIALS
ON
TORTS977 (fd ed. i977); W. PROSS~R,
THE LAWb~ TORTS751 (4th ed. 1971).
12. 376 U.S. 254 (1964).
H . KALVEN,& R. EPSTEIN,supra note 11, at 977.
13. See C. GREGORY,
14. See general& Warren & Brandeis, The Right to Privacy, 4 HARV.L. REV. 193 (1890).
15. Prosser, Privacy, 48 CALIF.L. REV.383, 389 (1960). Not all legal scholars agree with the
principles upon which Prosser chose to organize his four categories. See Bloustein, Privacy as an
Aspect of Human Digniw An Answer to Dean Prosser, 39 N.Y.U. L. REV.962 (1964); Felcher &
Rubin, Privacy, Publicity, and the Portrayal ofReal People by the Media, 88 YALEL.J. 1577 (1979).
16. See, e.g., N.Y. CIV.RIGHTSLAW$8 50.51 (McKimey 1976); WIS. STAT.8 895.50 (1979)
(note that the Wisconsin legislature declined to adopt the "false light" form of the common law
tort); see general& Miller, The Privacy Revolution: A Report from the Barricades, 19 WASHBURN
L.J. 1, 5 (1979).
17. see ~ i m e Inc.
, v. Hill, 385 U.S. 374 (1967).
18. "It is commonly understood that an action or cause of action for libel is injury to character or reputation . . . . [Llibel is considered as relating to character and reputation, as distinct
from a wrongful injury to the person." Reed v. Real Detective Pub. Co., 63 Ariz. 294, 301, 162
P.2d 133, 137 (1945) (citations omitted) (recognizing cause of action for invasion of privacy). See
also 50 AM. JUR. 2D Libel andSlander 8 1, at 512-13 (1970).
19. RESTATEMENT
(SECOND)OF TORTS8 46 comment d, at 73 (1977):
It has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by "malice," or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which the recitation of
28
Washburn Law Youma/
[Vol. 23
In early actions, damages for emotional distress were allowed only
parasitically. That is, if a plaintiff proved physical injury or an independent tort, then she might also be allowed emotional distress dama g e ~ In
. ~ 1906,
~
Street commented prophetically on this method of
allowing emotional distress damages: "The treatment of any element
of damages as a parasitic factor belongs essentially to a transitory stage
of legal evolution. A factor which is today recognized as parasitic will,
forsooth, tomorrow be recognized as an independent basis of
liability.'Q1
Since Calvert ~ a ~ r u d first
e r discerned a pattern of judicial willingness to allow recovery for mental pain and anguish when no other
injury results from a defendant's unlawful act,22others, such as Pros~ e r were
, ~ ~quick to acknowledge the judicial creation of a new tort.
The Restatement (Second) ofTorts (1965) included a revised section on
the emotional distress
with a caveat admitting the limits of the
tort could not be defined: "The Institute expresses no opinion as to
whether there may not be other circumstances under which the actor
may be subject to liability for the intentional or reckless infliction of
emotional distress."25 The caveat notwithstanding, the Restatement
definition has proved influential in defining the elements necessary for
the tort26 and the standards by which those elements would be
An examination of suits for infliction of emotional distress combined with defamation and invasion of privacy demonstrates a field of
tort law in flux: sometimes clear, careful consideration of the claims;
sometimes treatment more advanced than argued by plaintie often
critical decisions, with caustic remarks regarding counsels7 pleadings
and confused applications of standards. Certainly, counsel, perhaps
relying on a single cause of action to the detriment of others, share
some blame when the emotional distress tort receives summary treatment. But decisions result from the interaction of counsel and judges.
the facts to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, "Outrageous!"
-I-.d
20. See Gadsden Gen. Hosp. v. Hamilton, 212 Ala. 531, 103 So. 553 (1925); Holdorf v.
Holdorf, 185 Iowa 838, 169 N.W. 737 (1918); Haeissig v. Decker, 139 Minn. 422, 166 N.W. 1085
(1918); Price v. Minnesota. D. & W. Ry., 130 M i m . 229, 153 N.W. 532 (1915); Gatzow v. Buening,
106 Wis. 1, 20, 81 N.W. 1003, 1009 (1900); Draper v. Baker, 61 Wis. 450, 21 N.W. 527 (1884);
Lynch v. Knight, 11 Eng. Rep. 854, 863 (1861).
21. T. STREET,THE FOUNDATIONS
OF LEGALL~ABILITY
470 (1906).
22. Magruder, MentalandEmotionalD1stur6ance in the Law of Torts, 49 HARV.L. REV. 1033
(1936).
23. See Prosser, supra note 6, at 874.
24. RESTATEMENT
(SECOND)OF TORTS5 46 (1965).
25. /dl , 5 46 caveat, at 72.
(SEC26. Consider the burgeoning number of citations to the Restatement. RESTATEMENT
OND)OF TORTS,5 46 appendix (1977).
27. It is, in fact, reminiscent of the way in which Prosser and, consequently, the Restatement,
for which Prosser served as reporter, have shaped the development of privacy law.
19831
Suing the Media
29
The decisions reflect degrees of sophistication in the treatment of this
tort; the range of treatments reflect the range of sophisticati~n.~~
One problem for defense attorneys is that a single complaint will
allege a multiplicity of actions, all of which must be dealt with separately to reach the merits of a claim. Resulting treatment may spring
from suspicions of complaints padded with ill-founded claims.
Whatever the reason, less-used tort theories often receive short shrift.
For instance, the First Circuit Court of Appeals has termed infliction of
emotional distress and invasion of privacy actions "wanly proferred
claims" while affirming a trial court's decision on the same reasoning as
better pedigreed claims of false imprisonment and assault and
battery.29
Such multiplicity in pleadings did not appear to bother courts in
Galella v. Onassis, 30 and Cole v. Dun & Bradsireet .31 The Second Circuit Court of Appeals affirmed the trial court's findings in Galella that
photographer Ron Galella was guilty of intentional infliction of emotional distress, invasion of privacy-both intrusion and commercial exploitation theories, harassment, assault and battery-all on state tort
grounds-and of violating Jacqueline Onassis' constitutional right to
p r i v a ~ y 3 ~ atorts
l l of a relatively intangible nature. Even the batteries
were of a technical nature, involving touching, rather than striking,
Ona~sis.'~In affirming a directed verdict in Cole, the Sixth Circuit
Court of Appeals likewise carefully considered claims of libel, intentional and negligent infliction of emotional distress, and invasion of
privacy-both under commercial appropriation and false light theories-applying the proper standards to each.34
Courts struggle not only with how seriously to consider emotional
distress claims when pleaded, but even with whether the claim should
be considered at all. Much of this confusion comes from the similarity
of interests protected by the various dignitary torts or torts which focus
on the protection of "per~onality."~5Is emotional distress an injury
28. Development of this tort in Wisconsin has been the subject of law review articles by
Conklin and Eiche. Neither addresses Wade's evolutionary theory, though both acknowledge the
tort's general expansion. See Comment, The Common Low Treatment in Wisconsin of the Right to
Recoverfor Emotional Harm, 1977 Wrs. L. REV.1089; Comment, Recovery in Wisconsinfor Emotional Distress Resulringfrom Intentional Torts, I964 Wls. L. REV.453.
29. Rogers v. Okin, 634 F.2d 650, 663 n.13 (1st Cir. 1980).
30. Galella v. Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972), afld inpart andrev'dinpart, 487
F.2d 986 (2d Cir. 1973).
31. Cole v. Dun & Bradstreet, No. 80-1015, slip op. (6th Cir. Oct. 22, 1981). The October
1976 issue of Dun's Review contained an article on the Spalding Corporation. Part of the article
concerned a new line of tennis wear designed by "Doli Cole (ex-wife of former General Motors
President Edward Cole)." Dollie Cole (different from Doli) also designed clothing and was married to Edward Cole throughout that period. Dollie sued the publisher, but lost.
32. Galella v. Onassis, 487 F.2d at 994.
33. Id
34. See supra note 3 1.
35. See D. DOBBS,REMEDIES
528-36 (1973). See also infro Part 111.
30
Washburn Law Journal
[Vol. 23
discrete from the libel action or is it merely a specified damage caused
by the libel? Some courts consider it distinct, some parasitic.
In Tappen v. Ager,36the Tenth Circuit treated a portion of a complaint seeking punitive damages in the manner of a separate action for
infliction of emotional distress. Plaintiff Tappen pleaded, among other
theories, an "invasion of privacy alleging libel" and sought punitive
damages "arising from gross and wanton conduct or outrageous conThe court separated the "outrageous conduct" from the "gross
and wanton conduct" in the allegation, treated it as a claim for emotional distress, and explicitly applied the Restatement outrageousness
standard in affirming dismissal of that count.
Compare this with the decision of the Seventh Circuit Court of
Appeals in Hutchinson v. Proxmire. 38 In that case, Hutchinson filed
suit for defamation, infliction of emotional distress and invasion of privacy after Senator Proxrnire had given his "Golden Fleece" award to
federal agencies for sponsoring Hutchinson's research. In affirming
summary judgment, the court stated: "We view these additional allegations [infliction of emotional distress and invasion of privacy] of
harm as merely the results of the statements made by the defendants.
If the alleged defamatory falsehoods themselves are privileged, it
would defeat the privilege to allow recovery for the specified damages
which they cause."39 Hutchinson did not seek review of this point and
the Supreme Court gave no opinion as to its correctness.
The widely publicized cases of Galella v. Onassis40and Firestone v.
Time, Inc. 4 1 in the early 1970's confirmed courts' and jurors' willingness to protect individuals from emotional h a m caused by journalists.
Though courts differ in their characterizations of claims for infliction of
emotional
increasing judicial acceptance of the new tort
seems clear; Galella and Firestone reflect that trend against a particular
class of defendants.
Though intentional infliction of emotional distress can be, and has
.
36. 599 F.2d 376 (10th Cir. 1979).
37. Id at 377 (note the crossed terms between false light and defamation).
38. 579 F.2d 1027 (7th Cir. 1978). rev'd. 443 U.S. 11171979).
39. 579 F.2d at 10j6.
40. 353 F. SUDD.196 (S.D.N.Y. 1972). afld in Dart andrev'din Dart, 487 F.2d 986 (2d Cir.
1973). Mrs. 0 n a & obtained an i n j ~ n c h o n a ~ a i n ' sat freelance p60tographer who, the court
found, had intentionally caused her emotional harm in his efforts to photograph her and her
familv. 487 F.2d at 993-94.
41. 305 So. 2d 172 (Fla. 1974), vacatedandremanded, 424 U.S. 448 (1976). Mrs. Firestone
received a $100,000 damage award from the jury in her libel suit, although she dropped all claims
for damages to her reputation on the eve of trial. The award could only have been intended to
compensate her for the mental anguish she suffered. 424 U.S. at 460-61.
42. See supra Part I.B.
\
,
19831
Suing the Media
31
been, successfully used on its own against a media defendant,43 its real
threat lies with its use in association with other tort theories. Three recent cases illustrate media's close encounters with this new tort and
jurors' apparent willingness to award damages to a complainant if they
discern an emotional distress peg on which to hang an award.
Although the awards failed to survive appellate review, a Michigan jury assessed $5,000 compensatory and $35,000 exemplary damages on a claim for intentional infliction of emotional distress against a
reporter for the Ann Arbor Sun in the case of Ross v. Burns. 44 The
action arose after a scuffle between undercover narcotics agent William
Burns and two rep0rte1-s.~~
The newspaper subsequently published the
officer's name and photograph with a story critical of the state's narcotics investigations. When the two reporters sued for injuries allegedly
incurred in the scuffle, Officer Bums cross-complained for invasion of
privacy and infliction of emotional distress.46 The trial court dismissed
the invasion of privacy plea. The jury then found for Bums on the
other claims.
Similarly, an Arizona jury, in February 1981, absolved Investigative Reporters and Editors, Inc. (IRE) and individual defendants of liability for defamation and invasion of privacy, but not on an emotional
distress claim, in a suit brought by millionaire Kemper M a r l e ~ . ~The
'
jury awarded Marley a total of $15,000 punitive damages on his claim
that IRE and its former head intentionally had caused him emotional
distress. The defense p l a ~ e to
d appeal the awards, claiming they were
improperly made if without actual injury, before a settlement, sans
damages, was a ~ o u n c e dfive months later.48
Most recently, the Florida District Court of Appeals reversed a
jury award of $10,000 in Cape Publications v. Bridges49for publication
of a photograph of plaintiff being led nude from her house by police.
Plaintiff had been abducted by her estranged husband, who forced her
to disrobe to prevent her escape. She was clutching only a dish towel
when rescued. Though the publication "could be considered by some
43. See Clifford v. Hollander, 6 MEDIAL. REP. (BNA) 2201 (N.Y. Civ. Ct. 1980). Defendant, publisher of Cinema X magazine published a photograph of a nude "aspiring actress" with
the name and city of plaintiff, a freelance writer who had earlier described him in an article as a
"gap-tooth porno-film maker." Hollander claimed not to have written the copy for the photograph and insisted that the plaintiffs name, place of residence, and occupation appeared by coincidence. Expressing disbelief of defendant's story, the court,assessed Hollander the jurisdictional
limit of $10,000 on Clifford's single count of intentional infliction of emotional distress.
44. 612 F.2d 271 (6th Cir. 1980).
45. Id at 272.
46. Id
47. Marley v. Investigative Reporters & Editors, Inc., C-365969 (Ariz. Super. Ct. Feb. 198 1).
48. NewsNotes, Libel Suit Against IRE Settled With No Damages, 7 MEDIAL. REP. (BNA)
No. 18, August 4, 1981.
49. Cape Publications v. Bridges, 423 So. 2d 426 (Fla. Dist. Ct. App. 1982), cert. denied, 52
U.S.L.W. 3284 (U.S. Oct. 11, 1983) (NO. 83-215).
32
Washburn Law Journal
[Vol.23
to be in bad taste," the court described the ordeal as "a typical exciting
emotion-packed drama to which newspeople, and others, are attracted.
It is a newsworthy ~tory."~OPublication of the photograph and story
failed to meet the outrageousness test required for intentional infliction
of emotional distress and, likewise, did not constitute an invasion of
privacy, the court held.5'
Cases such as these suggest media need fear the evermore creative
and complicated pleadings of plaintiffs' attorneys and the generosity of
sympathetic juries. But these are isolated cases, mere anecdotal evidence. If this new tort is being used to expose media's collective soft
underbelly, a statistical examination of defamation-1ike.cases against
media should reveal it is being pleaded with more frequency and
greater success. To accomplish such a study, 484 cases from a five-year
period involving media defendants sued for defamation, invasion of
privacy, or infliction of emotional distress were e~amined.5~
The examination shows a startlingly small use of the emotional distress tort but
significant trends that will not allay media fears.
50. Id at 427.
51. Id at 428.
52. All cases studied came from MEDIALAWREPORTER(BNA). This reporter provides a
nation-wide survey of cases involving primarily media defendants. The cases are .drawn from
advance sheets of all federal decisions, an examination of West Publishing Company's regional
reporters, and notices provided the organization by attorneys and media representatives. More
cases may have been obtained by a separate examination of lower-court reporters, though the
tendency of lower court decisions in most jurisdictions not to be reported suggests the number so
obtained would be relatively minor and the jurisdictional representation skewed. The concentration of media-related cases also obviates a lengthy LEXIS-type word search, the winnowing process already having been completed by the Media Lnw Reporter's editorial staff. Still, the relative
quantity and representative character of cases not carried by the reporter cannot be determined
because of the lack of information from most trial courts. Though something to keep in mind, this
unknown factor should not have too great an effect. The sample contains a substantial body of
trial-level decisions. Of the universe being examined, 198 decisions are by trial courts, 175 by
intermediate appellate courts, and 111 by top appellate courts.
Determining pleadings from opinions will always be a problem, particularly in appellate decisions when a particular theory may not have been pursued. Having several opinions (different
motions, levels of court, etc.) made it possible to pick up bits of information that would otherwise
have been missed.
Over 650 cases were drawn from seven volumes of the reporter, beginning with its first publication in January, 1977 and ending in mid-April, 1982. The original sample was trimmed to 484.
Because of uncertainty regaiding the manner in which the editorial staff may have chosen decisions announced before the start of publication, 1976 cases were eliminated from the study. Relatively few 1982 decisions were available and, rather than be concerned with possible seasonal
variations (based, presumably, on court sessions rather than weather), 1982 decisions were eliminated as well. In order to avoid giving diaerential weights to cases, every attempt was made to see
that each incident upon which a suit or suits were based resulted in only one case for the study.
Only the most recent decision was used; multiple suits against different defendants were considered as if one; dismissals were not recorded as such unless applicable to all media defendants in
the case; dismissals of specific counts were not separately coded as a "pre-trial" win for defendant
unless remaining counts did not include defamation, privacy, or emotional distress claims.
Actions involving the comme~cialappropriation branch of privacy law caused problems. The
gravamen of the actions studied here generally involve psychological injury to plaintiffs. However
characterized, the injury is non-monetary, whereas the injury in a commercial appropriation case
directly relates to the "value" of the use. To solve the problem, appropriation cases were examined to determine whether non-monetary injuries were pleaded and used to decide whether the
plaintiff complained primarily of not being paid for the appropriation (and the case therefore
excluded from the study), or whether she wanted to be "let alone" (and, therefore, included).
Suing the Media
A. General Observations
Defamation clearly is the preferred theory. Of the 484 cases, 437,
or 90.3 percent, involve pleas of defamation; 111, or 22.9 percent, involve privacy claims; while only eighteen,53 or 3.7 percent, involve
claims for infliction of emotional distress.54
Reported cases involving defamation, invasion of privacy, or emotional distress pleadings against media defendants increased almost
three-fold in five years, from fifty-one decisions in 1977 to 144 in 1981
(see Graph 1). Although significant, particularly in light of media and
insurer claims of increasing numbers of s ~ i t s , ~an5 important caveat is
necessary. Since the graph shows only the latest decision in each suit,
one or more earlier decisions may have been eliminated. The result is a
"stacking"56 of cases to the latter years. A certain reduction in the
frequencies for 1980 and 1981 can be expected in any subsequent study
as cases are "moved" to 1982 and beyond by reliance on later decisions.
Still, one would expect the frequencies for 1977, 1978, and 1979 to have
already been affected by such changes, yet the trend appears steadily
through those years.
53. Ross v. Bums, 612 F.2d 271 (6th Cir. 1980); Fleury v. Harper & Row Publishers, Inc., 7
MEDIAL. REP. (BNA) 1795 (S.D. Cal. 1981), a f d , 698 F.2d 1022 (9th Cir. 1983); Dougherty v.
Capital Cities Communications, 7 MEDIAL. REP. (BNA) 2535 (E.D. Mich. 1981); MacDonald v.
Time, 7 MEDIAL. REP. (BNA) 1981 (D.N.J. 1981); Lewis v. Time, Inc., 83 F.R.D. 455 (E.D. Cal.
1979);Tumminello v. Bergen Evening Record, 454 F. Supp. 1156 (D.N.J. 1978); Marley v: Investigative Reporters & Editors, No. C-365969, Ariz. Super. Ct., Maricopa County (Feb. 1981) reported in NewsNotes, 7 MEDIAL. REP. (BNA) No. 18 (July 17, 1981); Weingarten v. Block, 102
Cal. App. 3d 129, 162 Cal. Rptr. 701 (1980); Cape Publications v. Bridges, 423 So. 2d 426 (Fla.
Dist. Ct. App. 1982), cerf. denied, 52 U.S.L.W. 3284 (U.S. Oct. 11, 1983) (No. 83-215); Florida
Publishing v. Fletcher, 340 So. 2d 914 (Fla. Dist. Ct. App. 1976); Galvin v. Gallagher, 81 Ill. App.
3d 927, 401 N.E.2d 1243 (1980); Beresky v. Teschner, 64 Ill. App. 3d 848, 381 N.E.2d 979 (1978);
Bilney v. Evening Star Newspaper Co., 43 Md. App. 560,406 A.2d 652 (1979); Fry v. Ionia Sentinel-Standard; 101 Mich. App. 725, 300 N.W. 2d 687 (1980); McManamon v. Daily Freeman, 6
MEDIAL. REP. (BNA) 2245 (N.Y. Sup. Ct. 1980); Khan v. News Group Publications, 6 MEDIAL.
REP.(BNA) 1429 (N.Y. Sup. Ct. 1980); Clifford v. Hollander, 6 MEDIAL. REP. (BNA) 2201 (N.Y.
Civ. Ct. 1980).
54. Each decision was examined, first headnotes, then skimming for additional references to
pleadings, to note whether defamation, various forms of invasion of privacy, or emotional distress
(the tort, itself, not merely a plea for damages) had been pleaded. Each privacy claim was analyzed to determine, if possible, which branch or branches of the common law tort were being
argued. Actions brought under a privacy statute, such as New York's Civil Rights Act, N.Y. CIVIL
RIGHTSLAW$3 50,51 (McKinney 1976), were noted as such and an attempt was made to characterize the claim as falling within one or more of the common law categories. In the course of
analysis, a new variable, "Privacy," was defined to include the several privacy categories previousl coded. All the pleading variables were labelled as either "pled" or "not pled." Percentages
totarmore than 1M because. of the frequencies of multiply pled suits.
55. See Barbash, Huge Libel Suits Against Media May R e d in 'Chilling' of News, MONDAY
SECTION,
THE[MADISON,
WIS.] CAPITAL
TIMES,Aug. 31, 1981 at 2; Rambo, OldNemesisHaunts
Press; Suit3 Mulfipo Rulings Sting, 2 PRESSTIME,
Nov. 1980, at 4; Terry, Burnett v. National Enquirer. Lafed in Growing Trend to Sue Pressfor Libel, CHRISTIAN
SCIENCE
MONITOR,Mar. 30,
1981, at 1.
56. This non-statistical term is used to describe the pile-up of currently unresolved cases.
They are unresolved in the sense that appeals had not yet been exhausted.
34
vol. 23
Washburn Law Journal
GRAPH 1. Frequencies of defamation, privacy, and emotional distress cases arranged by year of latest decision, with percentage of decisions from state courts.
Federal Courts
Year
1977
1978
1979
1980
1981
Also shown in Graph 1 are relative frequencies of state and federal
court decisions in each year. The split is fairly constant, with sixty-five
to seventy-four percent of all decisions coming from state courts each
year.
Though Wades7 suggested more of a long-term, evolutionary process, significant short-term changes in pleading practices might indicate
the anticipated trend. Unfortunately, trends in choices made at the
pleading stage became somewhat speculative when the data does not
reveal the dates of pleadings. To correct for the expected deviation in
pleading dates between decisions rendered at different court levels,
57. See supra note 1.
Suing the Media
19831
35
dates of appellate decisions were "lagged".58 The result is a seven-year
period, 1975-1981, which was used to analyze trends based on decisions
made by attorneys at the pleading stages.59
TABLE 1. Percentages of particular pleas by year of presumed pleading date. "n" indicates the number of cases for that year.
Pleadings
Defamation
Privacy
Distress
1975
88
18
0
Year, with higher court levels lagged
1976 1977 1978 1979 1980
91
90
90
91
88
14
16
22
20
33
3
2
6
3
2
1981
94
30
6
NOTE: Due to the incidence of multiple pleadings, percentages do not total 100.
Table 1 displays this seven-year period with relative frequencies of
defamation, privacy and emotional distress pleadings. Note the small,
statistically insignificant60 increase in defamation pleadings from
eighty-eight percent in 1975 to ninety-four percent in 1981. Most importantly, emotional distress pleadings display a modest but significant
upward trend. Privacy pleadings also increase significantly, in a curvilinear fashion, starting at eighteen percent in 1975, dropping slightly
before rising to a high of thirty-three percent in 1980, and dipping to
thirty percent in 1981.
The results of cross-tabulating three branches of the common law
privacy tort and statutory privacy are summarized in Table 2. Of the
four groups, false light, the branch most akin to defamation, increases
quite-significantly, followed by pleadings alleging violation of a privacy
statute. The significant increase in false light pleadings, with that
branch's strong ties to defamation law, generally supports Wade's ob58: Intermediate appellate wurt decisions were lagged by one year; top court decisions by
two. This somewhat arbitrary method was used to introduce a correction factor into the time
variable. The one- and two-year figures are estimates of the time it should take a case to move
from trial wurt judgment to filed decision in an intermediate court of appeals and supreme wurt,
respectively.
59. Coding the cases by year of the latest decision has the advantages of providing a significant date for the status or outcome of the suit and of making uniform the treatment of appellate
decisions with and without previously reported lower court decisions. However, any analysis of
trends across time in the choice of pleadings is hampered by the unknown length of time between
pleading and the recorded decision; of course, the length presumably is greater for appellate than
trial decisions.
60. Significance measurements are made at the .10 level unless otherwise noted. Occasional
references will be made to a variation as "approaching significance," which generally means the
significance level of Kendall's Tau or Pearson's R lies between .10 and .15. Note that the test of
significance here is whether any variation observed could have occurred by other than chance and
is not considered a measure of "fit" between the characteristics of this group of cases and the
"population" of all such United States cases. The 484 cases under study are not a "sample" of the
population; technically they comprise the "universe" of such cases available for this study and no
sampling has been done.
36
Washburn Law Journal
[Vol. 23
servation of increasing overlap between the two actions.61 No significant relationship appears between years and the remaining categories,
publicizing embarrassing personal facts ("revelations") and intrusion
upon seclusion.
TABLE 2. Percentages of various privacy pleadings by year of presumed pleading date. "n" indicates the number of cases for that year.
PrivacyPleas
False light
Revelations
Intrusion
Statute
n=
Year, with higher court
1975 1976 1977 1978
5.9
2.9
1.5
13.6
5.9
2.9
11.8
11.1
11.8
.O
10.3
4.9
.O
11.4
.O
11.1
17
35
68
81
levels lagged
1979 1980
8.7
14.6
5.5
12.4
5.5
6.7
4.7
13.5
127
89
1981
20.9
10.4
6.0
11.9
67
B. Pleading Combinations
Bare explication of a single pleading, such as privacy or its subgroup, false light, may illustrate an increase in acceptance by the plaintiffs' bar, but its application is best examined in the actual context of
pleadings. To do so, the seven possible combinations of pleadings were
organized into four categories. Since only eighteen plaintiffs alleged
intentional infliction of emotional distress, all eighteen are considered
together.62 The other three categories are defamation-only (369 cases),
defarnation/privacy (60 cases), and privacy-only (37 cases).
Table 3 shows these combinations by year, with the year lagged63
to control for pleading dates. Note that both defamation-only and privacy-only pleadings decline over the seven-year period, while defamation/privacy and emotional distress pleadings increase. The
significance becomes even more apparent when the categories are combined to form a dichotomy of multiply versus singly pled suits (see Table 4). A fairly steady increase in cases based on multiple pleadings is
apparent, running from 5.9 percent in 1975 to 23.9 percent of the year's
total in 1981.64
61. See s u p note 1. See also Prosser, supra note 15, at 389.
62. Of the 18 cases pleading emotional distress, two involved no privacy or defamation
claims, two comblned a defamation claim, seven combined privacy, and six contained all three
theories.
63. See supra note 58.
64. Not shown, but of some interest, is the finding that the relative composition of pleadings
varies by court level and jurisdiction. The relative frequency of defamation-only suits in decisions
before top appellate courts is fully 14 percent greater than for trial level courts, while multiply
pled suits are pleaded 13 percent less often. While 13.8 percent of decisions from state courts
involve multiply pled suits, the corresponding figure in federal court is 21.3 percent.
These differences in frequencies of combinations between court levels could be explained in
Suing the Media
19831
37
TABLE 3. Percentages of various pleading combinations by presumed pleading date. "n" indicates the number of cases for that year.
Combinations
Defame only
Defame/privacy
Privacy only
Distress-all
1975
82.4
5.9
11.8
.O
Year, with higher court levels
1976 1977 1978 1979
85.7 83.8 76.5 78.7
5.7
4.4
13.6
9.4
7.4
6.3
5.7 10.3
2.5
5.5
2.9
1.5
lagged
1980 1981
66.3 70.1
21.3
17.9
9.0
6.0
3.4
6.0
TABLE 4. Percentages of multiply and singly pled complaints by
year of presumed date. "n" indicates the number of cases for that year.
Pleadings
Multiple
Single
n=
1975
5.9
94.1
17
Year, with higher court
1976
1977
1978
8.6
5.9
16.0
91.4
94.1
84.0
35
68
81
levels lagged
1979
1980
15.0
24.7
85.0
75.3
89
127
1981
23.9
76.1
67
At the pleading stage, plaintifs attorney chooses the theory or theories under which she will pursue the suit. Unnumbered considerations enter the process, but the only consideration examined directly
here is the probability of success.65 In defamation cases against media,
pre-trial motions for summary judgment or dismissal pose substantial
hurdles for plaintiffs.66 Given the significance of this stage, all cases
were coded for results according to four categories, two of which distinguished the stage of defendant's success:
several ways, though none probably affect the primary examination conducted here. The differences likely spring from the time lag between pleading a case at trial and subsequent decisions by
top appellate courts. A suit in the Supreme Court reflects the law and pleading practices extant
two to six years earlier. Of course, the differences may also reflect the relative types of suits
appealed, though I discern no reason to believe there should be such a difference. A serious
possibility is that claims made pursuant to another theory have been dropped at a lower court
level and are never addressed by the higher court. Such treatment of an emotional distress pleading could have an effect on results discussed here given the relatively small number of such
pleadings.
65. The idea of success raises another question, which is troubling but not addressed here:
What of the theory included in a complaint but not seriously advanced by counsel at trial? Privacy and emotional distress claims often may be an afterthought of counsel whose intention is to
pursue only a defamation argument and who, in fact, may not even research or familiarize herself
with the newer tort theories.
66. See Franklin, Suing Mediafor Liber': A Litigation Study, 1981 AM.B. FOUND.
RESEARCH
J. 797, 801.
38
Washburn Law Journal
Plaintiff wins
Defendant wins
pre-trial
Defendant wins
post-trial
Unknown
[Vol. 23
A finding of liability against at least one media
defendant based upon at least one of the three
theories discussed here.
Dismissal or summary judgment in favor of all
media defendants.
Judgment for all media defendants following
either a trial or appellate review.
All others, many of which resulted from
reversals of summary judgments.
Of the 484 cases, 259, or 53.5 percent, failed to survive pre-trial motions
and comprise the second category above. Only thirty-seven cases (7.6
percent) involve plaintiff victories, with fifty-seven (1 1.8 percent) wins
for defendant following trial or review. Of the total, 27.1 percent, 131
cases, were unresolved.
These categories provide the substance for various definitions of
"plaintiffs' success." For instance, the obvious measure of success is an
out-and-out win. To dichotomize this variable, defendant win categories were combined into one and all unknown cases were treated as
missing values. The results for plaintiffs are summarized as wins in
Table 5.
TABLE 5. Various measures of plaintiffs' success in defamation, privacy, and emotional distress suits against media by year of latest decision. "n" indicates the number of cases for that year.
Plaintiffs' success
Wins
Percentage
Sunive/trial
Percentage
Su~ive/date
Percentage
1977
Year of latest decision
1978
1979
1980
1981
12.5
8.2
7.8
7.7
15.5
40.0
16.4
18.8
23.1
36.1
52.9
32.9
44.1
41.7
56.9
But a final verdict is not the only form success may take in a lawsuit. The ability to survive pre-trial motions for dismissal and summary judgment allows a plaintiff to barter the costs of trial for a
settlement. Simple survival to trial, then, is crucial. The importance is
apparent by noting that, of the cases for which the outcome is known,
over two-thirds failed to survive to that point. However, since none of
the cases were coded specifically by pleading stage, those classified as
unknown cannot be divided between pre- and post-trial. The difficulty
19831
39
Suing the Media
is partially overcome by treating them as missing ~ a l u e s 6for
~ the purpose of determining how many of the cases survived to trial, but including them in the measure of the cases which have survived to the
date of the latest decision. The result is two measures of survival. Both
are summarized in Table 5.
Both survival measures are statistically significant at the .10 level.
In fact, there appears to be a trend since 1978 for greater survivability.
This would tend to correspond with the Wolston v. Readers Digest Ass%
~ ~ decided in mid- 1979, in
Inc. and Hutchinson v. P r o x n ~ i r ecases,
which the Supreme Court "express[ed] some doubtV70about the appropriateness of summary judgment in defamation cases.'' The distribution of "wins" approaches significance, but the unusually high win rate
in 1981 may reflect awards not yet reversed by appellate courts.
Table 6 compares various success measurements by combinations
of actions. Only the differences between combinations in the survive/date category are statistically significant, but an interesting tendency appears. In the last row, non-defamation-only suits survived up
to 10.5 percent less often than defamation-only suits. The tendency
remains in the survive/trial row. The trend is reversed for wins, with
plaintiffs winning slightly more often in categories other than defamation-only suits. If such a tendency exists,72it would suggest that some
factor at trial allows more plaintiff wins to occur on other than defamation-only suits.73 This could indicate either juror sympathy for privacy
and emotional distress claims (explaining the higher win rates) or the
practice of "padding" pleadings in marginal cases (explaining the lower
survival).
- -
67. These unknowns will be ignored in the statistical tests.
68. 443 U.S. 157 (1979).
69. 443 U.S. 1l l (1979).
70. Hutchinson v. Proxmire, 443 U.S. at 120 n.9. See also Wolston v. Readers Digest Ass'n
Inc., 443 U.S. at 161 n.3.
71. Franklin discerned no differences pre- and post-Wolston in his study of defamation cases,
Suing Mediafor Libet A Litigation Study, I981 AM. B. FOUND.RESEARCH
J. 797. However, his
theory was that the decisions may have caused lower courts to forego use of summary judgment to
some extent. It may be the decision merely lent support to a trend already begun by lower court
judges.
72. Bear in mind that the null hypothesis cannot be rejected; the variation observed may
have occurred by chance.
73. No significant differences occur in pIaintiffs' win rates between state (with 10.2 percent)
and federal (with 11.0 percent) courts.
40
Washburn Law Journal
[Vol. 23
TABLE 6. Various measures of plaintiffs' success by combinations of
defamation, privacy, and emotional distress pleadings. "n" indicates
the number of cases in that column.
Plaintiffs' success
Wins
Percentage
Survive/trial
Percentage
n=
Survive/date
Percentage
n=
Defameonly
Combinations
Defame/
Privacyprivacy
Distressall
9.9
12.5
10.3
14.3
27.9
22.9
24.1
21.4
262
48
29
14
48.8
38.3
40.5
38.9
369
60
37
18
C. Jurisdicional Variables
Logically, one would presume the major decisive factors in the run
of lawsuits to be the facts and the law. Facts generally are determined
in court. These change drastically between cases, though certain
dimensions, such as the form of media involved, nature of the act or, if
applicable, defamatory statement, can be correlated with success
rates.74
The law, when it comes to tort suits, has more than fifty-one possible values, with states, the District of Columbia, and sundry federal
j~risdictions.~~
Such a large number proved ~ n w o r k a b l e .Two
~ ~ hypotheses served to direct the search for meaningful categories. Both are
based on the assumption that members of the plaintiffs bar would react
to the treatment of defamation-only pleadings within their respective
jurisdictions and that privacy and emotional distress claims are consciously utilized to support defamation-type claims.
The first hypothesis was, as plaintiffs' success rates increase in defamation-only actions, plaintiffs rely less on combined pleadings. The
74. See Franklin, supra note 66.
75. The various permutations of common law developed in each state or other jurisdiction
will be applied, even in federal wurts. Of course, the fact that federal wurts are required to apply
state tort law in most cases does not preclude differences in interpretations.
76. The 484 cases forming the sample under study arose in 51 different jurisdictions. No
cases appeared from Hawaii, Nevada, and Rhode Island, while Guam, Puerto Rico, and the Virgin Islands each made contributions. The District of Columbia is the fifty-first jurisdiction. Large
differences appear between states. Win rates vary widely, but with few exceptions, the cell sizes
are so small and the numbers of cells so great that some categorization is necessary to test differences between jurisdictions. Franklin, supra note 66, at 827, has done so and appears to have
confirmed libel insurance information by showing that a group of nine states accounted for a
significantly greater proportion of plaintiffs' successes than in other states. Libel insureds in those
nine states apparently are charged double premiums.
19831
Suing the Media
41
sample was divided into three
The only significance discovered was in correlating this measure with pleas involving emotional
distress claims. Statistical measures are all significant at the .10 level,
but the direction is opposite that hypothesized; pleading rates for the
tort run from 2.1 percent, through 3.7 to 5.3 as plaintiffs7 success in
defamation-only suits rise, suggesting, perhaps, that secondary pleadings are the choice of a more sophisticated and relatively more successful bar.78
The second hypothesis was that, as dismissals in defamation-only
suits rise, pleadings for emotional distress and/or combined pleadings
also would rise. The cases were split at about the median, with twentyone states providing 240 cases (49.6 percent) which were placed in the
high-defamation-dismissal categoryJ9 The most significant finding in
correlating this variable with others is that dismissal rates in defamation-only suits have no effect on overall pleading rates for defamati~n,~O
though the relative frequency for defamation-only pleadings is
2.4 percent lower in the high dismissal jurisdiction^.^^
The rate of privacy-only pleas also drops slightly and a significant
correlation appears when multiply and singly pled complaints are compared across the jurisdictional variable (see Table 7). Though not
strong, the difference is significant at the .10 level and occurs in the
direction hypothesized. That is, as defamation-only dismissals.rise, so
..
does utilization of combined pleadings.
77. Jurisdictions generating no plaintiffs' wins in defamation-only suits were easily grouped
into one category, which accounted for 144 (29.8 percent) of the 484 cases. States with the 12
highest win rates were placed in the top category. A third value, medium plaintiff wins, was
assigned a group of five jurisdictions, which accounted for 190 (39.3 percent) of the cases. The use
of three categories helped to form more nearly equal-sized groups. New York, must be given
special consideration since its 115 cases are nearly one-fourth of the total and, as a whole, fell
between high and medium win rates.
78. Survive/trial also varies significantly between jurisdictions divided by plaintiff-win ra:
tios, but the middle group displays an anomoly. Survival actually dips slightly before rising in the
higher win jurisdictions. Since survival is expected to be related to win rates, the interesting feature, and one that needs further study, is the nature of this middle group of jurisdictions, which
include New York, the District of Columbia, Ohio, Illinois, and Florida.
75. High dismissal jurisdictions include: Alaska, Arkansas, Delaware, District of Columbia,
Florida, Kansas, Kentucky, Michigan, Minnesota, Montana, Nebraska, New Jersey, New York,
Ohio, Oregon, Puerto Rico, South Carolina, South Dakota, Virgin Islands, Wisconsin, and
Wyoming.
80. Defamation was pled in 220 of 244 (90.2 percent) "low dismissal" cases and in 217 of 240
(90.4 percent) "high dismissal" cases. The most interesting correlation statistic was the corrected
chi square, which equalled .00000.
8 1'. No significant correlations appeared.
42
Washburn Law Journa/
[Vol. 23
TABLE 7. Percentages of 'multiple pleadings found between jurisdictions distinguished by dismissal rates of defamation-only complaints.
Pleadings
Dismissal rates
Low
High
Multiple
Single
n=
13.5
86.5
244
18.8
81.3
240
A third jurisdictional variable was developed based solely on
whether emotional distress appeared in any media suits from that state.
The nine states providing the emotional distress suits also contribute
240 (49.6 percent) of the total cases.82 When this variable is cross-tabulated with the wins variable, a barely significant 4.4 percent increase in
plaintiffs' wins is noticed in jurisdictions in which distress has been
pleaded. However, the significance of the difference begins to become
apparent when the jurisdictional variable is used to control correlations
between the wins variable and combinations of pleadings. The results
are summarized in Table 8.
TABLE 8. Plaintiffs' win rates, in percentages, by combinations of
defamation, privacy, and emotional distress pleadings compared between jurisdictions distinguished by use or non-use of the emotional
distress tort. "n" indicates the number of cases in that column and
jurisdiction category.
DefameJurisdictions
Distress
pled
n=
Not pled
n=
10.9
(128)
9.0
Combinations
Defame/
Privacyprivacy
17.2
(29)
5.3
16.2
(12)
5.9
Distressall
14.3
(14)
-
The table shows a minor (1.9 percent) greater win rate for defamation-only plaintiffs in the distress-pleading jurisdictions, but 11.9 and
10.8 percent increases for defamation/privacy and privacy-only suits,
82. The nine states in which the emotional distress tort was pled include: Arizona, California, Florida, Illinois, Maryland, Michigan, New York, New Jersey, and Utah.
Suing the Media
D. Summary
A trend toward increasing numbers of suits against media appears
in decisions a ~ o u n c e dfrom 1977 through 1981. The proportion of
federal cases has remained fairly constant, so the increase has been
equivalent in both state and federal forums and probably the result of
. natural growth.
Among the pleadings, defamation, both in combination and alone,
continues to be the theory of choice among plaintiffs' attorneys, though
the relative frequency of defamation-only pleadings is dropping. Emotional distress pleadings have increased in a pattern that is s i g n i f i ~ a n t . ~ ~
However, only eighteen cases involving the tort of intentional infliction
of emotional distress appear in a universe of 484. It is clear the tort is
not well utilized. Logically, one would expect frequency of utilization
to increase, but predicting a trend on the basis of eighteen cases is risky.
The significant rise in false light pleadings probably reflects a greater
awareness of the tort on the part of attorneys, as well as increasing
acceptance by the states.g5 Emotional distress could follow a similar
trend, but caution is necessary. False light is so similar to defamation
that its increased use also could reflect a mere redundancy in defamation suits or a developing separation from the bulk of what is called
privacy law.
On the other hand, the trend toward greater use of combined
pleadings, particularly combinations of defamation and privacy, is
clear.86In the context of Wade's theory,g7 such combinations of defamation and privacy should precede similar use of the emotional distress
tort, if acceptance of such combinations is an element of legal
evolution.
In the area of plaintiffs' success, survival rates of actions have increased across the board since 1978, corresponding roughly with the
Supreme Court's suggestion in Wolston and Hutchinson that summary
judgment was inappropriate for defamation suits.88 Oddly, survival
rates for non-defamation-only cases are significantly lower, although
win rates, on the whole, are slightly higher than for defamation-only
complaints. This may reflect a tendency to " p a d a poor defamation
case in an unrealized hope of surviving pre-trial motions.
83. A significant correlation appears between these jurisdictions and a defarnationonly/others dichotomy.
84. See supra note 60.
85. See Prosser, supra note 15, at 398-401.
86. See supra Tables 3 & 4.
87. See supra note 1.
88. Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979).
1
44
Washburn Law Journal
[Vol. 23
Combined pleadings display a slight increase, approaching significance, in win rates. The two "wins" in emotional distress cases provide
a 14.6 percent success rate, relatively high compared with defamation
actions.
Not surprisingly, significant differences in plea combinations and
plaintiffs' success rates appear between jurisdictions. As dismissal rates
of defamation-only suits rise, so does the use of multiply pled complaints. On the other hand, no differences appear in the frequency of
defamation pleadings, and only a 2.5 percent decrease occurs in the
pleading rate of defamation-only suits in high-dismissaljurisdictions.89
One jurisdictional variable shows a relatively considerable effect
on win rates.90 Rates for non-defamation-only suits are considerably
higher for jurisdictions in which emotional distress has been pleaded.
The jurisdictions include more populous states with higher numbers of
suits: New York, California, Illinois, and Michigan. The nine states
comprising the group contribute half the cases studied. These same
states have higher success rates overall, suggesting the general sophistication of the plaintiffs' bar may explain parts of both the increased
multiple pleadings and increased success.91 Finally, attorneys appearing in federal courts utilize multiple pleadings to a greater extent, 2 1.3
compared to 13.8 percent in state courts.
In sum, an analysis of these media cases evidences no great rush to
charge journalists with infliction of emotional distress, but combined
pleadings in general are gaining increased utilization and success. The
question now becomes, "What forces, social and legal, militate for and
against development of this tort?"
A. Deheating the Interests
What are the interests protected by each of these three tort theories? Are they distinct, separable interests? If not, does a blurring of
distinctions indicate, as Wade suggested, a movement toward "a single,
integrated system of protecting plaintiffs peace of 1nind?"9~
To deal with the apparent overlap between defamation and privacy law, several courts have attempted distinctions between the theo89. Further research into the motivations of anti-media plaintiffs (and defamation plaintiffs,
in general) could be very interesting. The findings here seem to corroborate suggestions that
defamation battles involve far more than considerations of success.
90. See supra Table 8.
91. The term "sophistication" is used only to suggest the greater experience in prosecuting
media-related defamation suits in certain jurisdictions and types of practice.
92. Wade, supra note I , at 1125. Wade illustrated the increasing overlap between defamation
and two branches of privacy law, false light and embarrassing revelations. Readers are referred to
his article for that examination.
Suing the Media
45
ries, distinctions often clearer in print than practice. Attempts usually
follow the theme of the Supreme Judicial Court of Massachusetts,
which, in 1940, distinguished the right to privacy from the right to freedom from defamation saying, "the former directly concerns one's own
peace of mind, while the latter concerns primarily one's reputation."93
This is a theoretical distinction, difficult to maintain in practice because
damage awards may cover a range of injuries; in particular cases, injuries to reputation or peace of mind may be as well protected under one
form of action as another. The Supreme Court, in Trine, Inc. v. Hi11, 94
said:
Although not usually thought of in terms of "right of privacy,"
all libel cases concern public exposure of false matter, but the primary harm being compensated is damage to reputation. In the "right
of privacy" cases, the primary damage is the mental distress from
having been exposed to public view, alfiou h in/i'ry to reputation may
be an element bearing upon such damage.
98
Historically, tort plaintiffs could recover for emotional distress as
"parasitic" damage without pleading an action based on infliction of
emotional distress.96 This has been as true for defamation as for other
common law
The Supreme Court apparently has eliminated
the requirement for the base award in defamation suits.98 In a first
step, the Court allowed states the freedom to define the base injuries for
which plaintiffs could be compensated, saying, "Indeed, the more customary types of actual harm inflicted by defamatory falsehood include
. . . personal humiliation, and mental anguish and suffering."99 Two
years later the Court said, not only could states include mental anguish
93. Themo v. New England Newspaper Publishing Co., 306 Mass. 54,57,27 N.E.2d 753,755
( 1940).
94. 385 U.S. 374 (1967).
95. Id at 384 n.9 (1967) (emphasis added).
96. See supra notes 20 & 2 1 and accompanying text.
97. Another area of applicability is civil rights. See Curtis v. Leother, 415 U.S. 189, 195 n.10
(1974) (quoting C. GREGORY,
H. KALVEN
& R. EPSTEINCASESA N D MATERIALS
ON TORTS961
(2d ed. 1969)); D. DOBBS,REMEDIES
528 (1973). A more traditional recovery was obtained in
Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981). The court in Herrera indicated that much of
the $300,000 compensatory damages was for the emotional distress incurred as a result of the
denial of civil rights. Herrera was executor for the estate of Jo Ann Yellow Bird. Yellow Bird had
gone to the assistance of her husband when he was arrested in Gordon, Nebraska on Sept. 15,
1976. Valentine, one of the arresting officers, kicked her in the stomach, handcuffed her, ignored
her pleas for medical attention while driving to the county jail 20 miles away, and stopped along
the way and threatened to shoot her. As a result, Yellow Bird suffered physical and emotional
injuries and her unborn child died in the womb and was stillborn two weeks later. It is not
unusual for women to obtain damages for miscarriages suffered as the result of some tortious act,
often an assault directed at her or a close relative. See RESTATEMENT
(SECOND)OF TORTS6 46
comment 1 (1977). In thls case, however, the jury found for plaintiff bnly on ihe federal iivil
rights
- claim. 653 F.2d at 1222.
98. Strictly speaking, the Court has held the first amendment does not bar states from deciding for themselves what elements of damages will be recoverable in a defamation action.
99. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). On remand, the jury awarded
plaintiff $100,000 compensatory and $300,000 punitive damages for injuries presumed suffered
when American Opinion magazine named Gertz as a member of a Communist conspiracy intended to undermine local police. 680 F.2d 527 (7th Cir. 1982).
46
Washburn Law Journal
[Vol. 23
among the compensable injuries, they could allow anguish to be the
sole injury. "Because respondent has decided to forego recovery for
injury to her reputation, she is not prevented from obtaining compensation for such other damages that a defamatory falsehood may have
caused her."lo0
In the latter case, Mary Alice Firestone sued Time, Inc., under
Florida law allowing recovery for emotional distress independent of
any showing of damage to reputation.lo1 Though she withdrew her
claim for damages to reputation on the eve of trial, a jury awarded
Firestone $100,000 damages.1°2 Her evidence regarding injury centered on her worries over an article Time magazine printed erroneously
stating her husband's divorce petition had been granted, in part, on
grounds of adultery, and the effect this would have on her young son.
"[Plaintiffs witnesses] included [her] minister, her attorney in the divorce proceedings, plus several friends and neighbors, one of whom
was a physician who testified to having to administer a sedative to respondent in an attempt to reduce discomfort wrought by her worrying
about the article."103 With the reputation claim withdrawn, recovery
could have been predicated only upon this evidence of "discomfort"
and "worrying," which constitute emotional distress. lo4
Despite the rule of Gertz v. Robert Welch, Znc., lo5 defamation cases
against media often follow a pattern of presuming damage to reputation and finding evidence of compensable mental anguish. Note the
trial court's findings in Schrottman v. Boston Globe:lo6 "[Tlhe comments falsely attributed to him would inevitably damage his reputation,
particularly among those who are similarly invested in this community.
I$nd he did mfer mental anguish and is entitled to compensation for
that suffering."107 Similarly, the Louisiana trial court in McHaZe v.
Lake Charles American Press lo8 stated, "Unquestionably these defamatory words greatly injured McHale's reputation as an attorney, and impaired his standing in the community. He has been severely humiliated
and embarrassed, and has sufered considerable mental distress.'"Io9 The
court went on to discuss the evidence advanced by McHale to prove his
100. Time, Inc. v. Firestone, 424 U.S. 448, 460 (1976).
101. See Briggs v. Brown, 55 Fla. 417, 46 So. 325 (1908); 19 Fla. Jur. 2d Defamation and
Privacy $3 86-89.
102. 424 U.S. at 460-61.
103. Id at 460 n.6.
104. In reversing the trial court judgment, the Florida Dist. Court of Appeals held simply,
"There is no cause of actlon for hbel without damage to reputation." Time, Inc. v. Firestone, 279
So. 2d 389,394 (Fla. Dist. Ct. App. 1973), rev'd, 305 So. 2d 172 (Fla. 1974), vacated, 424 U.S. 448
(1976).
105. 418 U.S. 323 (1974).
106. 7 MEDIAL. REP. (BNA) 1487 (Mass. 1981).
107. Id at 1488 (emphasis added).
108. 390 So. 2d 556 (La. Ct. App. 1980).
109. Id at 568-69 (emphasis added).
19831
Suing the Media
emotional distress.IIO
With this meshing of the awards in defamation suits, confusion in
the handling of an emotional distress count, when coupled with a defamation action, becomes predictable. Sometimes the count is summarily
dismissed, as in this brief reference by the California Court of Appeals:
"Weingarten acknowledges that if the libel count fails, the cause of action for intentional infliction of emotional distress must also fail."lI1
The Weingarten v. Bhck case grew from several allegedly libelous articles and an editorial published in the Monterey PeninsuCa Herald.
Plaintiff, a former city attorney, was non-suited at the closing of testimony for failing to carry his burden of proof in showing actual malice.112 His status as a public official and public figure may suggest the
reason for a treatment different than that given the private-person
plaintiffs in Galvin v. Gallagher. 113
Plaintiffs in Galvin were parents of a teen-age overdose victim. A
journalist, who had been acquainted with parents and son, wrote an
article generally critical of parents whose children become involved
with drugs. The author did not name the boy or parents, but referred
to "one of our area teenagers" and the circumstances of his death in her
opening. After disposing of the libel count by utilizing Illinois's "innocent construction rule," the court applied the Restatement principles to
the count for intentional infliction of emotional distress.Il4 It stated
"[Wle cannot find that the conduct of defendant Gallagher was 'so outrageous' and 'so extreme' as to go beyond the bounds of decency."115
As the cases above illustrate, defamation and emotional distress
counts often rise and fall together.116 Occasionally, however, the emo110. Id at 569.
111. Weingarten v. Block, 102 Cal. App. 3d 129, 162 Cal. Rptr. 701 (1980).
112. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
113. 81 Ill. App. 3d 927, 401 N.E.2d 1243 (1980).
114. RESTATEMENT
(SECOND)OF T ~ R T8S46(1) (1977).
115. 401 N.E.2d at 1246.
116. The tendency also appears in cases involving non-media defendants. The plaintiff in
Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980), received $4,500 general and $52,500 punitive
damages in a general verdict on counts of slander, intentional infliction of emotional distress, false
imprisonment, assault, and deprivation of civil rights. Id at 936. The Ninth Circuit Court of
Appeals affirmed. The case arose from Mr. Traver's attempt to obtain $1,000 cash from a Bank of
America branch in 1975. Bank employees encountered some problems confirming Traver's signature and bank courtesy card. Traver, impatient, loudly announced he would return in five minutes for the money and started for the door, at which point the cashier's supervisor ordered a
guard to detain him. For.part of the next 15 to 20 minutes the guard, an off-duty police officer,
held his .38-caliber gun in his hand as he stood near Traver at the bank entrance. Id at 937.
The Ninth Circuit Court of Appeals reinstated a complaint charging defamation, intentional
infliction of emotional distress, and wrongful interference with practice of a profession in Mir v.
Fosburg, 646 F.2d 342 (9th Cir. 1980), after the district court dismissed it for failing to state a
federal cause of action. Id at 344. The suit arose in the context of plaintiffs dismissal from the
Balboa Naval Hospital. The appeals court did not reach the merits of his claims. fd at 347.
In the other direction, the plaintiff in Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir.
1980), failed to have his actions for, among others, defamation and intentional infliction of emotional distress reinstated following dismissal for failing to prosecute the action or to comply with a
court order to complete discovery. Again, the courts failed to reach the merits, here charging
48
Washburn Law Journal
[Vol. 23
tional distress count may enable a plaintiff to avoid technical requirements in defamation law. For instance, former football player Don
Chuy received an award of over $75,000 from the Philadelphia Eagles
on his count for infliction of emotional distress. l7 A count for defamation failed. The Eagles' team physician, after examining Chuy, told a
sports reporter Chuy suffered from a fatal blood condition which
predisposed him to blood clots. The remarks were carried in sports
stories across the country in connection with Chuy's decision to retire
because of a clot in his lung. The jury found the statements were false
and defamatory. However, Pennsylvania law further requires the immediate recipient of an allegedly defamatory statement understand the
statement as being defamatory.ll8 The jury decided the sports writer
did not understand the physician's remarks were defamatory, and the
trial court denied that claim.119
The suggestion that a claim for infliction of emotional distress
might be easier to prove is nearly reversed in privacy actions. In actions for invasion of privacy, compensable emotional distress must be
only "of a kind that normally results from such an invasion and . . .
normal and reasonable in its extent."120 Though peace of mind is protected by the principles underlying both invasion of privacy and infliction of emotional distress torts, it appears the disturbance to such
mental tranquility must be far greater to support the latter action. This
does not appear to be unusual, given judicial reluctance to accept actions based upon mental or emotional injury alone.121
With regard to damages, invasion of privacy actions resemble
those for defamation in terms of r e ~ 0 v e r y . lMost
~ ~ of the same injuries
are compensable, particularly emotional distress caused by the invaChira, an attorney himself, and Chira's attorney with neglect. Id at 666-67. In two cases arising
from dismissals of plaintiffs from governmental positions, counts of defamation, and intentional
infliction of emotional distress failed to reach the jury, see Shewmaker v. Minchew, 504 F. Supp.
156 (D.D.C.), a f d , 666 F.2d 616 (D.C. Cir. 1980); Bradley v. Computer Sciences Corp., 643 F.2d
1029 (4th Cir. 1981).
117. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979).
118. Id at 1280.
119. Id
120. RESTATEMENT
(SECOND)OF TORTS5 652H comment b (1977).
121. The similarities can lead to a quandry for the single-plea attorney. In 1980, the Seventh
Circuit Court of Appeals appeared to wish it was faced with a more familiar invasion of privacy
suit; plaintiff-appellant in Bast v. Ford Motor Credit Corp., 631 F.2d 508 (7th Cir. 1980). claimed
intentional infliction of emotional distress instead. The complaint alleged that defendant's employees repeatedly had called Bast and his wlfe inquiring as to the whereabouts of their son, who
owed defendant money. The employees berated and insulted the Basts after they denied knowledge of their son's location. The actions culminated in a phone call to Mrs. Bast while she lay in a
hosp~talundergoing chemotherapy. She died a few months later. The appeals court confirmed
that these actions were not sufficiently outrageous to allow rellef, but only after noting that,
though both parties had implied invasion of Mrs. Bast's privacy could have been grounds for a
complaint, it had never been pleaded and her executor had not been ma'de a party to the proceedings. Id at 510-11.
(SECOND)OF TORTS§ 652H comment b, at 402 (1977).
122. See RESTATEMENT
19831
Suing the Meda
49
sion. Pleadings as in Jaubert v. Crowley P o ~ t - S i g n a Zare
~ ~common.
~
A
photograph of plaintiffs home, with the cutline, "One of Crowley's
stately homes, a bit weatherworn and unkept, stands in the shadow of a
spreading oak," appeared on the local newspaper's front page. The
Jauberts sued for $15,000 each in damages for "mental suffering, embarrassment, and humiliation." However, the Louisiana Supreme
Court never reached the question of appropriate damages. It decided
the Jauberts had no pcvacy interest in the image of their home, which
was open to public view.
As noted with defamation cases above, combinations of emotional
distress and privacy claims tend to rise and fall, mostly the latter, together. Where defamation is not pleaded, the invasion usually consists
of either intrusion or public disclosure of private facts. Yet, as in defamation-type cases, the privacy interests protected by these branches
tend to be balanced against the public interest in news gathering when
the cases involve media defendants.124 Courts, such as the Sixth Circuit in Ross v. Burns, 125 carry this same balancing into their examination of emotional distress claims.
The defendant's cross-complaint in Ross alleged invasion of privacy and intentional infliction of emotional distress. The action arose
from a scuffle between Burns, an undercover narcotics agent, and two
reporters for the Ann Arbor Sun. Subsequent publication o f the officer's picture accompanied a story critical of the state's narcotics investigations. The trial court dismissed the invasion of privacy claim. A
jury assessed $5,000 in compensatory and $35,000 exemplary damages
against Ross on the infliction of emotional distress ~ 1 a i m . l The
~~
awards did not survive appellate review, with the court saying:
Appellants' conduct in this case consisted of photographing an undercover police officer in a public place and publishing those photographs and the officer's identity in conjunction with "news articles"
expressing strong views on a current political and philosophical controversy. We cannot believe that these acts fall within the meaning
of "extreme and outrageous" conduct contemplated by the drafters
of the Restatement. Accordingly, we hold that appellee did not and
could not have stated a claim upon which relief for intentional infliction of emotional distress might be granted.12'
In similar, though often quite brief, examinations, other courts
have dismissed infliction of emotional distress claims after disposing of
invasion of privacy claims based upon: a newspaper article that re123. Jaubert v. Crowley Post-Signal, 375 So. 2d 1386 (La. 1979).
124. See, e.g, Cape Publications v. Bridges, 387 So. 2d 436, 438 (Fla. Dist. Ct. App. 1980),
rev'don remand, 423 So. 2d 426 (Fla. Dist. Ct. App. 1982), cerf. denied, 52 U.S.L.W. 3284 (U.S.
Oct. 1 1 , 1983) (No. 83-215);seealso Time, Inc. v. Hill, 385 U.S. 374,376 (1967). Seempra Part 11.
125. 612 F.2d 271 (6th Cir. 1980).
126. Id at 272.
127. Id at 274.
50
Waxhburn Law Journal
[Vol. 23
ported on the fire-related deaths of a man and woman in.-acottage and
published names of the male victim's wife and children;128a newspaper
article that revealed confidential information concerning the academic
standing of college basketball players;l29 and unauthorized use of the
photograph of a "stoutish" woman.130
'
The Illinois Court of Appeals departed slightly from this approach
in a suit alleging libel, infliction of emotional distress, and invasion of
privacy. Parents of a drug overdose victim sued a newspaper in Beresky v. Tesc/merI3l over articles concerning the boy's death. According
to the initial article, the son was a fugitive charged with unlawful possession of a hypodermic needle and had been arrested on numerous
other charges since his eighteenth birthday. The court easily disposed
of the libel count, saying plaintiffs had failed to allege any false or defamatory statements referring to them.I32 It also found "that the pub~ ~ not an
lished matter was of legitimate concern to the p u b l i ~ , " lthus,
invasion of privacy. In affirming dismissal of the emotional distress
claim, the court did not explicitly balance the public concern with the
plaintiffs' emotional security, merely concluding the publications were
not outrageous or extreme enough to state a cause of action.134Perhaps
the balancing, as with a privilege, is a secondary step, one that should
be taken only after an initial finding that defendant's actions are extreme enough to impose liability.
The intrusion branch of privacy also overlaps the tort of trespass;
two Florida cases involving photographs include trespass among pleadings for invasion of privacy and emotional distress. Both serve to illustrate that various causes are predicated upon distinct actions of
defendants.
Plaintiff in Elorida Publishing Co. v. Fletcher 135 first learned the
facts of her daughter's death in a fire by reading a newspaper article
accompanied by a photograph showing a silhouette left by the girl's
body on a charred floor. The mother sued for invasion of privacy and
trespass for the actions of the photographers in entering her house and
taking the photograph. The infliction of emotional distress claim arose
not only from the taking of the photograph but, also, from its subsequent pub1i~ation.l~~
Similarly, plaintiff in Cape Publications v. BridgesI3?distinguished
Fry v. Ionla Sentinel-Standard, 101 Mlch. App. 725, 300 N.W.2d 687 (1980).
Bltney v. Evenlng Star Newspaper Co., 43 Md. App. 560, 406 A.2d 652 (1979).
McManamon v. Da~lvFreeman. 6 MEDIAL. REP (BNA) 2245 (N.Y. SUD.Ct. 1980).
64 IU. App. 3d 848. $31 N.E.2d 979 (1978).
381 N.E.2d at 982.
Id at 985.
Id at 983.
340 So. 2d 914 (Fla. Dist. Ct. App. 1976), cerf. denied, 431 U.S. 930 (1977).
Id
387 So. 2d 436 (Fla. Dist. Ct. App. 1980), rev'a'on remand, 423 So. 2d 426 (Fla. Dist. Ct.
\
,
19831
Suing the Media
51
the infliction of emotional distress claim arising from the "act of taking,
publishing and di~tributing"'~~
photographs of her being removed,
nude, from an abduction scene. Her lawyer further distinguished the
trespass upon property allegation from the "right to her privacy of her
physical person."139Careful distinctions such as these make clear that,
though plaintiffs interests ultimately converge on some conception of
mental anguish, the tort theories begin with somewhat different actions
by defendant.
B . Pleading Concerns
1. A voiding a Statute of Limitatians
In some situations, the multiplicity of available theories allows a
plaintiff to maintain an action otherwise barred under a different statute of limitations.140 Whether this choice is good or bad depends on
your side in the particular case.
The developed and seemingly apparent distinctions between the
defamation and privacy torts allowed Wade to assert that separate statutes of limitation were applied to such pleadings.141 The problem with
asserting the same for actions pleading infliction of emotional distress
lies in the fact that proof for the torts and resulting injuries are identi~ a 1 . These
l ~ ~ similarities can result in the application by a court of the
limitation for the more established tort. New Jersey, for instance, explicitly allows the court to "look beyond the label affixed to the cause
of action and inquire into the gist of the action to determine the governing period of limitations."143 In MacDonald v. Time, the court applied this rule to find "that the gist of these causes of action [invasion of
App. 1982), cert. denied, 52 U.S.L.W. 3284 (U.S. Oct. 11, 1983) (No. 83-215). The jury awarded
$10,000 to plaintiff for her invasion of privacy and emotional distress claims. The appellate court
reversed on the merits. Cape Publications, Inc. v. Bridges, 423 So. 2d 426 (Fla. Dist. Ct. App.
1982), cert. denied, 52 U.S.L.W. 3284 (U.S. Oct. 11, 1983) (No. 83-215).
138. 387 So. 2d at 438.
139. Id
140. Consider the dissent of Senior Circuit Judge Gibson in Bishop v. Tice, 622 F.2d 349 (8th
Cir. 1980): "I also dissent from the majority's finding that Bishop has a state claim for fraud and
deceit, since I believe that under the complaint's factual allegations the proper cause of action is
one for defamation or intentional infliction of emotional distress rather than for fraud and deceit."
622 F.2d at 360 (Gibson, J., dissenting).
Bishop alleged defendants had coerced him into abandoning his job as a federal safety engineer by threatening to lodge false criminal charges against him. He originally sued for defamation, among other counts. Under the applicable Arkansas law in this diversity action, defamation
and intentional infliction of emotional distress carry one-year Limits. ARK. STAT.
ANN.8 37-201
(1977). Fraud and deceit, which typically has a longer statute of limitations to allow an injured
party time to discover the fraud, had a three-year limit for the commencement of actions. ARK.
STAT.ANN.8 37-206 (1962).
141. Wade, supra note 1, at 1117.
142. The emotional distress tort requires proof of an outrageous act (which may consist of a
publication), severe emotional distress (which may be an element of damages in a defamation
action), and a scienter requirement (which, in essence, is comparable to the actual malice requirement of New York Times v. Sullivan, 376 U.S. 254 (1964)).
143. MacDonald v. Time, 7 MEDIAL. REP. (BNA) 1981, 1983 (D.N.J. Aug. 25, 1981).
52
Washburn Law Journal
[Vol. 23
privacy and infliction of emotional distress] is defamation, and as such,
is tirne-ba~~ed."'~~
Attorneys should keep this in mind, though some
jurisdictions may allow different limits. These must be investigated
individually. '4'
2. Defendant 3 State of Mind 146
The Supreme Court in Gertz v. Robert Welch, Inc. 147 posed the
requirement that private-person plaintiffs in defamation actions prove
some fault in order to obtain presumed or punitive damages. Several
states have raised this minimum threshold;l48 and, of course, the "actual malice" requirement holds for public officials and public figures. 149
Still, most jurisdictions appear to require only a showing of negligence
on the part of a defendant in order for a private person to maintain a
defamation suit.lS0 Not so with suits for intentional infliction of emotional distress.
Intentional infliction of emotional distress requires actual intent
and knowledge or a recklessness on defendant's part.lS1 The higher
standard equates with malice. The necessary proof allows a plaintiff to
recover the full range of damages. "Malice is implicit in an action for
intentional infliction of emotional distress, which action permits not
only punitive damages but also damages for mental suffering."152 The
result of this higher standard is to make damages for emotional distress
144. Id
145. For applications of a different limitation to false light actions, see Uhl v. Columbia
Broadcasting Systems, Inc., 476 F. Supp. 1134 (W.D. Pa. 1979); Maloney v. Tribune Publishing,
26 Wash. App. 357, 6 MEDIAL. REP. (BNA) 1426 (1980). Contra Smith v. Esquire, Inc., 494 F.
Supp. 967 (D. Md. 1980). See also Ross v. Gallant, Farrow & Co., P.C., 27 Ariz. App. 89, 551
P.2d 79, 82 (1976) (court held claim of negligence to be subsumed by claim of libel stating, "Defamation is the gist of the claim.").
146. Although discussed in terms of "fault," the actual malice standard of New York Times v.
Sullivan, 376 U.S. 254 (1964), is, by nature, a scienter requirement. The proofs required to
establish actual malice involve the defendant's subiective state of mind. See Herbert v. Lando.
441 U.S. 153 (1979).
147. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).
148. See Gay v. Williams, 486 F. Supp. 12 (D. Alaska 1979); Walker v. Colorado Springs Sun,
Inc., 188 Colo. 86, 538 P.2d 450, cert. denied, 423 U.S. 1025 (1975); Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind. App. 671, 321 N.E.2d 580 (1974), cert. denied,
424 U.S. 913 (1976); Peisner v. Detroit Free Press, Inc., 82 Mich. App. 153, 266 N.W.2d 693
(1978)
,---,.
149. New York Times v. Sullivan, 376 U.S. 254 (1964) (public official); see Curtis Publishing
Co. v. Butts, 388 U.S. 130 (1967) (public figure).
150. Eg., Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309,560 P.2d 1216 (1977); Troman v.
Wood, 62 Ill. 2d 184, 340 N.E.2d 292 (1975). See RESTATEMENT
(SECOND)OF TORTS5 580B(c)
(1977)
,- ,
151. Intention and recklessness. The rule stated in this Section applies where the actor
desires to inflict severe emotional distress, and also where he knows that such distress is
certain, or substantially certain, to result from his conduct. It applies also where he acts
recklessly, as that term is defmed in 5 500, in deliberate disregard of a high degree of
probability that the emotional distress will follow.
RESTATEMENT
(SECOND)OF TORTS5 46 comment i (1977).
152. Cape Publications v. Bridges, 387 So. 2d 436 (Fla. Dist. Ct. App. 1980), rev'd on remand,
423 So. 2d 426 (Fla. Dist. Ct. App. 1982), cert. denied, 52 U.S.L.W. 3284 (U.S. Oct. 11, 1983) (No.
83-215).
19831
Suing the Media
53
sometimes easier to obtain parasitically as proven actual damages than
as damages under the separate tort theory.153
3. Outrageousness of the Act
The character of defendants' conduct in media related cases pales
in comparisdn with that in the leading emotional distress a ~ t i 0 n s . l ~ ~
The clearest case of media liability concerns a calculated act of revenge
by the publisher of a pornographic magazine against a free-lance
writer.155That so few emotional distress claims have been successfully
maintained against media defendants probably is due to the strict requirements of the outrageousness standard. "The liability clearly does
not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities."156 Liability requires conduct which is "so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."157 This standard provides
the greatest limiting factor:
What we are dealing with, in other words, is outrageous conduct, of a
kind especially calculated to cause serious mental and emotional disturbance. It is the character of such conduct itself which provides the
necessary assurance that genuine harm has been done, and that it is
so important as to be entitled to redress.158
As suggested by the Ross v. Burns 159 decision, the outrageousness
standard also allows balancing of public rights without explicit reference to first amendment protections.l6O Applying a straight balancing
test between newsworthiness and personal integrity allows courts to
avoid the usual defamation disputes over privilege and abuse of privilege, as well as such fine distinctions as arise between public officials,
public figures, and private persons.
4. Severiy ofthe Injury
As described by the Restatement, emotional distress, to qualify for
recovery under the intentional infliction tort, must be "severe."
153. False light actions also have been subjected to the higher "actual malice" standard, Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974), resulting in the seemingly anomalous
situation in which a defamation action is sustained, but the false light action fails. See also
Dodrill v. Arkansas Democrat, 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076
(1980).
154. See Hanke v. Global V a n Lines, Inc., 533 F.2d 396 (8th Cir. 1976); Knierim v. Izzo, 22
Ill. 2d 73, 174 N.E.2d 157 (1961) (threatened to and killed plaintias husband); Johnson v. Woman's Hosp., 527 S.W.2d 133 (Tern. Ct. App. 1975) (showing mother her dead child in jar of
formaldehyde).
155. Clifford v. Hollander, 6 MEDIAL. RFTR. (BNA) 2201 (N.Y. Civ. Ct. Nov. 13, 1980).
156. Beresky v. Teschner, 64 Ill. App. 3d 848, 381 N.E.2d 979, 982 (1978).
157. RESTATEMENT
(SECOND)OF TORTS 46 comment d, at 72 (1977).
158. Prosser, supra note 6, at 879.
159. 612 F.2d 271 (6th Cir. 1980).
160. See supra text accompanying note 125.
54
Wadburn Law Journal
[Vol. 23
Complete emotional tranquility is seldom attainable in this world,
and some degree of transient and trivial emotional distress is a part
of the price of living among people. The law intervenes only where
the distress inflicted is so severe that no reasonable man could be
expected to endure it. The intensity and the duration of the distress
are factors to be considered in determining its severity.161
This, again, is a more stringent standard. As noted above, compensable emotional distress in privacy cases must be only "of a kind that
normally results from such an invasion and . . . normal and reasonable in its extent."162 In defamation cases, mental anguish flows rather
easily following a presumption of injury to reputation and the plaintill's own testimony may be adequate to prove the emotional distress.163
The better practice, and the one apparently required in emotional distress suits, is to have medical and family witnesses testify.164
One point to remember is that this requirement, like the standard
for outrageous and extreme conduct, is designed to protect against false
or trifling claims.l65 Consequently, one could expect the need for proof
of injury to diminish as the outrageousness of defendant's conduct increased, courts and juries then being less skeptical of defendants'
claims of injury. On the other hand, one would also expect the proof to
be easier to produce.
5 . Jury Sympathy
A recent
vindicates the gut feelings of litigators who believed just getting their cases to the juries virtually assured success.
The researchers found that plaintiffs won forty-two of forty-seven defamation cases submitted to juries and five out of six bench trials. The
study, by the Libel Defense Resource Center, further disclosed a trend
toward much higher damage awards.
Certain cases, by the nature of damage awards, also indicate a certain amount of juror sympathy for ~laintiffs.16~
It appears the fewer
elements or lack of certain technicalities168might allow jurors to hand
an award to plaintiffs for emotional distress when defamation or pri161. RESTATEMENT
(SECOND)OF TORTS5 46 wmment j, at 77-78 (1977).
162. RESTATEMENT
(SECOND)OF TORTS5 652H wmment b, at 402 (1977).
163. See Schrottman v. Boston Globe, 7 MEDIAL. REP. (BNA) 1487 (Mass. 1981).
164. McHale v. Lake Charles American Press, 390 So. 2d 556 (La. Ct. App. 1980); see also
Time, Inc. v. Firestone, 424 U.S. 448 (1976).
165. See Prosser, supra note 6, at 877.
CENTER
BULLETIN,
Aug. 15, 1982, at 2.
166. See 4 LIBELDEFENSERESOURCE
167. See, e.g., NewsNotes, Libel Suit Against IRE Settled With No Damages 7 MEDIAL. REP.
(BNA) No. 18 (Aug. 4, 1981). See also supra text accompanying notes 47 & 48.
168. In Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979), plaintiffs
claim for defamation was denied based upon a specific requirement of Pennsylvania law. However, the former football player received $10,000 compensatory and $60,590.96 punitive damages
on his complaint of intentional infliction of emotional d~stress.In this case, then, a "technicality"
served to deny recovery on the defamation count while allowing the infliction of emotional distress count to survive.
Suing fhe Media
vacy counts
C. Summary
An examination of emotional distress suits against media parallels
general development of the tort. Some confusion and reluctance appear among courts in the degree to which the tort is recognized as independent of defamation or privacy law. considerable overlap
appears between the three theories in that each allows damages primarily for emotional harm, despite frequent assertions to the contrary. Yet
careful distinctions show defamation and privacy are intended to protect victims from a particular type of act.170 A suit for intentional infliction of emotional distress may allow recovery when damage results
from an act which does not fit within the more established torts, is timebarred, may be lost to technical pleading requirements, or is so clearly
intended to cause emotional distress as to fall squarely within the tort.
Emotional distress also may provide a peg on which a sympathetic jury
might hang a damage award. On the other hand, requirements for the
severity of the injury and the outrageousness of defendant's actions
make the separate tort much more difficult to prove than would be
damages under a defamation or privacy theory.
IV. LEGALEVOLUTION
AND
THE
POPULAR
WILL
The previous examinations suggest several directions one may
look to predict the course of the emotional distress tort's development.
One such direction is the process of judicial decision-making.
Evolution of the emotional distress tort lies within the power of
courts as judges synthesize the dialectic of argument before them.
Evolution of common law is well recognized, with justices such as Benjamin Cardozo accepting and relishing their roles in the process. In
one of a series of lectures at Yale Law School, Cardozo said, "I am not
concerned to inquire whether judges ought to be allowed to brew such
a compound at all. I take judge-made law as one of the existing realities of life. There, before us, is the brew. Not a judge on the bench but
has had a hand in the making."171 Cardozo also addressed the sources
of that brew, suggestingjudicial integration of public concern and legal
norms. "At what point shall the quest [for logical consistency] be
169. Juries are not always more sympathetic to infiction of emotional distress claims. While
awarding the plaintiff in Avins v. White, 627 F.2d 637 (3rd Cir. 1980), $50,000 damages on a
defamation count, the jury in district court found for defendant White on charges of tortious
interference and infliction of emotional distress. The Third Circuit Court of Appeals reversed the
defamation awards, saying two of the three statements submitted to the jury were not capable of
defamatory meanings. The case, arising from the American Bar Association's refusal to accredit
the Delaware Law School, was remanded.
170. See supra Part 1II.A.
171. B. CARDOZO,
THENATUREOF THE JUDICIAL
PROCESS
10-1 1 (1921).
56
Washburn Law Journal
[Vol. 23
halted by some discrepant custom, by some consideration of the social
welfare, by my own or the common standards of justice and
morals?"172 Dicey, in another series of lectures delivered at Yale Law
School, insisted judicial opinions in England reflected public opinion,
though it "occasionally represents the opinion of the day before
yesterday." 173
Within the context of Wade's evolutionary theory and the growing
boundaries of the new tort of infliction of emotional distress, public
opinion might be more than a factor legitimating legal development.
Intuitively, one would think it supports, or even demands, development. Since the concept of privacy plays such a vital role in Wade's
theory, explanation of the relationship of the concept to the law intended to protect it lies at the beginning of any study of this development. An appropriate research question would be, "Does public
opinion support a concept of individual privacy broader in scope than
that protected by current privacy law?"174
A. Public Opinion and Judicial Policy
Traditional democratic theory provides strong support for the use
of public consensus in the shaping of judicial policy,175 as well as in
judicial review of legislative decisions.176 The effects of public opinion
on the political process of legislative action are pretty well assumed and
often correlated, though the precise channels of communicating public
opinion may not be e~plicated.17~Public opinion in regard to courts
traditionally has been studied as a dependent variable of court
action.178
172. Id
173. A.V. DICEY,LECTURES
ON THE RELATION
BETWEEN
LAW& PUBLICOPINIONIN ENGLAND DURING
THE NINETEENTH
CENTURY
369 (1905). Justice Holmes recognized that popular
will, as expressed through legislative enactments, was thwarted by some judicial activity. Dissenting in Lochner v. New York, 198 U.S. 45 (1905) from a decision str~kinga New York labor law as
unconstitutional, Holmes said:
This case is decided upon an economic theory which a large part of the country does not
entertain. . . . I think that the word liberty in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion, unless it can be
said that a rational and fair man necessarily would admit that the statute proposed
would infringe fundamental principles as they have been understood by the traditions of
our people and our law.
Id at 75-76 (Holmes, J., dissenting).
174. Accepting current controversy over what constitutes "pubhc opinion," this author embraces a simple, working definition for the purposes of this examination: public opinion or consensus is whatever lawyers or judges might reasonably perceive it to be and " h d it prudent to
heed." See V.0. KEY,PUBLICO P ~ N ~ AND
O N AMERICAN
DEMOCRACY
14 (1961).
175. See C. BLACK,THE PEOPLEAND THE COURT56-86 (1960).
176. THEFEDERALIST
NO. 78 (A. Hamilton).
177. See, e.g., A.S. MILLER,SOCIALCHANGE
AND FUNDAMENTAL
LAW:AMERICA'S
EVOLVING CONSTITUTION
(1979).
178. See, e.8, Murphy & Tanenhaus, Public Opinion and the United States Supreme Court: A
Preliminary Mapping of Some Prerequisitesfor Court Legitimation of Regime Changes, FRONTIERS
OF JUDICLAL
RESEARCH
(J. Grossman & J. Tanenhaus eds. 1969).
19831
Suing the Media
57
Further, the "grand traditionalists" of social science routinely link
legal change to social change models.179 Durkheim, for instance, commented regarding the development of legal institutions as society
moved from simple to complex divisions of labor.180 Friedman bases
his materialist perspective of nineteenth century American legal history
on social science relationships within the larger society.I8l Such models are not without their critics.Ig2
From the historical analysis of decisions, sometimes anecdotal,
sometimes using crude social science methodlogy, studies have evolved
into sophisticated examinations of role orientations and attitudes of
judges and their effects upon judicial decisions. Early research into
influences upon judicial decision-making range from the "general observations" of HainesIg3to the bloc analysis and examination of voting
patterns of the Roosevelt Court by Pritchett.lg4 Becker utilized survey
techniques to study Hawaiian judges and role variations.1s5 Gibson
went further, employing multivariate analysis of the sentencing behaviors of Iowa judges.lg6 He found that an interactive model of attitudes
and role orientations explained significant amounts of sentencing
variation.
Probably because data is readily available, many empirical studies
concerning the effects of public opinion involve the criminal sentencing
patterns of judges involving draft resisters,lg7 communists,~88 or
both.Is9 As an example, Cook found, over a nine-year period from
1967 to 1975, the correlation between national public opinion on the
Vietnam War and the sentences district court judges imposed on draft
offenders (longer versus shorter; prison terms versus probation) after a
two-year time lag was .975. Beyond the correlation, Cook discovered
public opinion explained forty-nine percent of sentencing
179. "Model" is used in the social science sense of being a theory or system of theories to
explicate or explain relationships.
180. E. DURKHEIM,
THEDIVISION
OF LABORIN SOCIETY
(1933).
181. L. FRIEDMAN,
A HISTORYOF AMERICAN
LAW295-322 (1973).
182. Tushnet criticizes Friedman, in part, for overgeneralizing his determinist model that law
is "molded by economy and society" and for rejecting the idea of judicial autonomy. Tushnet,
Perspectives on the Development ofAmerican Law, 1977 WIS.L. REV. 81, 83.
1 83. Haines, General Observations on the Efects of Personal, Political, and Economic Injuences
m the Decisions ofJudges, 17 ILL.
L. REV.96 (1922).
THEROOSEVELT
COURT:A STUDYI N JUDICIAL
POLITICS
A N D VALUES
184. C.H. PRITCHETT,
1937-1947 (1948).
185. Becker, A Survey SIudy ofHawaiian Judges: m e Efect on Decisions of Judicial Role Yariatrons, 60 AM. POL. SCI. REV.677 (1966).
186. Gibson, Judges' Role Orientations,Attitudes, and Decisions. An Interactive Model, 72 AM.
POL.SCI. REV.91 1 (1978).
187. See generally Cook, Public Opinion and Federal Judicial Policy, 2 1 AM. J. POL. SCI. 567
(9 177); Comment, Judicial Activiv and Public Attitude: A Quantitative Study of Selective Service
Sentencing in the fietnam War Period, 23 BUFFALOL. REV.465 (1973).
188. See Shapiro, Public Opinion and High Courts: Communist Party Cares in Four Constitutional Systems, 20 W. POL.Q. 341 (1967).
189. See Gaziano, Relationship Between Public Opinion and Supreme Court Decisions: Was
Mr. Dooley Right?, 5 COM.RESEARCH131 (1978).
58
Washburn Law Journal
[Vol. 23
differences.lgO
Analyzing decisions involving the first amendment and poll results
of questions regarding the rights of communists, criticism of government and war dissent, Gaziano concluded the Supreme Court was
more likely to restrict the first amendment when less than forty percent
of the public approved of a broad guarantee of free speech.lgl
In sum, research to date supports Cardozo's suggestion that judges
incorporate "common standards of justice and morals" into their decisions,lg2but has also only begun to examine the paths by which those
common standards communicate themselves to the courts. Only recently have researchers begun to study attitudes which may indicate
movement, or a desire for movement, toward protections offered by the
new tort: conceptions of privacy and the role of the press.
B. Privacy
The definition of privacy has garnered a fair amount of attention
and criticism, though relatively little empirical examination. Much of
the existing literature concerns privacy interests within broad, somewhat libertarian, bounds. '93
A notable historical study of privacy is David Flaherty's 1967
book, Privacy in Colonrbl New England This work provides an excellent text on the process of inferring social dimensions of privacy from
historical sources. Westin, a noted political science researcher in the
field of privacy, has examined the origins and functions of privacy in
the modem democratic state.lg4 He draws upon a range of natural and
social science studies to suggest a broad definition of privacy, an approach not without its critics.lg5 Though informative as to the development of a definition of privacy, Westin's primary emphasis concerns
intrusions by government. Other authors have attempted definitions of
privacy both withinlg6 and withoutlg7 the legal context. Pember appears to have monopolized the study of privacy and press concerns
with his history of the tort's development198 and, with Teeter, constitutional protections afforded the press.lg9 However, both pieces limit
themselves to the legal definitions of privacy or, rather, of what constitutes invasions of privacy.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
(1974).
Cook, supra note 187, at 585.
Gaziano, supra 189, at 145.
B. CARDOZO,
supra note 171, at 10.
See, e.g., A. BRECKENRIDGE,
RIGHTTO PRIVACY
(1970). A. WESTIN,PRIVACY
AND FREEDOM
(1967).
Eg., Engberg, A Public View of Privacy, 1 THE CENTERMAG.,Jan. 1968, at 69.
See Gerety, Redefining Privacy, 12 HARV.C.R.-C.L. L. REV.233 (1977).
See Simmel, Privacy, 12 THEENCYCLOPEDIA
OF THE SOC.SCI.481-87 (D. Sills ed. 1968).
D. PEMBER,
PRIVACY
AND THE PRESS(1972).
Pember & Teeter, Privacy and the Press Since Time, Inc. v. Hilh 50 WASH.L. REV. 57
19831
Suing the Media
59
On the international scene, the British Section of the International
Commission of Jurists, in a 1970 report,200discussed the public perception of privacy. The committee made specific references, by example,
to then (in Great Britain) unprotected invasions by media:
You are a respected member of your local community, but not in any
sense a public figure. One day, your local newspaper publishes an
article about you in which they allude to the facts that:
(a) twenty-five years ago you were convicted of stealing;
(b) ten years ago, you had an affair with a married woman;
and
(c) your mother died in a lunatic asylum.
All these statements are true.
You have the misfortune to be knocked down by a car driven by
a well-known politician and you are badly hurt. With the consent of
a member of the hospital staff (but not with that of yourself or your
family) a photographer from a news agency takes a picture of you,
disfigured and unconscious, in your hospital bed. A magazine to
whom he sells it publishes the picture.
Your only child, a successful actress, is killed in a car crash. Reporters telephone you night and day, and your house is beseiged by
photographers from the Press and television companies, who take
pictures of you and your wife whenever you show yourselves at the
door. These are published in the national Press and on television
news bulletins.201
A notable empirical work is a 1977 poll conducted for Sentry Insurance Company.202 Designed in affiliation with Westin, the survey
discerned the dimensions of privacy in a broad social context, including
perceived encroachments by media. Members of the public and various leadership groups participated. A majority of the public felt publication of the following would be invasions of privacy:
The details of an extramarital affair a public official is having
with another person (78%);
The names of people on welfare (71%);
A photograph of a well-known politician entering a pornographic bookstore (70%);
The names of young people under 16 years old who are accused
. of committing crimes (51%).
Majorities or pluralities of the leadership groups agreed with the public
on all of the above, with one exception. Law enforcement officials believe publishing the names of young people accused of a crime is not an
invasion. A plurality of the public (49%-47%) believes publishing the
names of men arrested for soliciting prostitutes constitutes an invasion
of privacy. Business employers (5 I%), regulatory officials (5 I%), Con200. JUSTICE (British Section of the International Commission of Jurists), PRIVACY
AND THE
LAW(1970).
201. Id at 50.
& ASSOCIATES,
INC.. THEDIMENSIONS
OF PRIVACY
(1979) (available from
202. LOUISHARRIS
Sentry Insurance Company).
60
Washburn Law Journal
[Vol. 23
gressional respondents (52%), and doctors (72%) agree.203
Unfortunately, the first three situations do not really contain
enough information to determine whether such publications would be
actionable under the common law right of privacy. Given any sort of
public purpose in disseminating the information, it is unlikely liability
would attach. As to publishing names of juveniles accused of a current
crime and of men charged with soliciting prostitution, liability for invasion of privacy clearly would not be imposed under existing law.zM
Those apparent discrepancies between public opinion and privacy
law should be viewed in the context of a society which may, at varying
times, indicate a preference for greater curbs on media. In a 1961
poll,205 fairly significant portions of the public approved of greater
curbs or controls on television and radio programs (49%-39%) and the
content of newspapers (31%-55%). Fortunately, majorities of those
wanting controls were concerned with matters quite apart from privacy
or defamation law. Excessive violence was the target of fifty-seven percent of those favoring curbs on television and radio. Of those favoring
controls on newspapers, fifty-two percent were concerned with military
defense information helpful to the enemy.
C. Summary
In all, a survey of the field shows little to determine what the public considers unacceptable invasions of privacy by the media. No researcher appears to have attempted polls or experiments designed to
examine differences between the privacy concept and the extent of legal
protections. The Sentry poll2O6indicates differences may exist, though
questions do not specifically ask whether the respondent felt a legal
remedy should be available to the victim. And, as noted above,207 most
of the factual situations are inadequate to draw legal conclusions.
Even with such information, questions remain. Comparing
Wade's theory with the social science models of the "grand theor i s t ~ , " ~one
~ * must question whether a theory of the evolution of digni203. Id at 61. With one exception, neither the public nor leadership groups considered the
following to constitute invasions of privacy:
The names of doctors who have received larger sums of money under Medicare and
Medicaid (65%-30%) (Doctors disagreed, 33%-67%);
The names of people arrested for possessing illegal drugs (68%-27%);
The contents of confidential govenunent papers that reveal incompetence or dishonesty
by public officials (7370-216).
204. Such information is a matter of public record. A privilege exists to publish matters of
public record as long as the publication fairly and accurately reflects the record. See RESTATEMENT (SECOND)
OF TORTS§ 61 1 (1977); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975) (Supreme Court held no liability for invasion of privacy could attach to publication of
name of deceased rape victim since the name came from court documents).
205. f i e Quarter's Polls, 25 PUB. OPINIONQ. 661 (1961).
206. See supra note 202.
207. See supra text accompanying note 204.
208. See supra notes 180-82.
19831
Suing the Media
61
tary torts toward "a single, integrated system of protecting plaintiffs
peace of mind"209 is itself testable. In this respect, Turkel's summary of
his article is instructive: "Empirical tests of Durkheim's legal theories
can neither confirm nor refute their central hypotheses. Rather than
serving to substantiate or refute theoretical propositions, empirical evidence is best conceptualized as providing for the specification and elaboration of a research program."210 Wade's theory is rich with
possibilities for study: social forces militating for legal change, channels of communicating public opinion to judges; effects of interest
groups, social status, or legal training on judicial decision-making.
Cardozo posed a number of provocative questions, suggesting a
model of judicial integration of public concerns and legal norms:
What is it I do when I decide a case? To what sources of information
do I appeal for guidance? In what proportions do I permit them to
contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, how do I reach the rule that will
make a precedent for the future? If I am seeking logical consistency,
the symmetry of the legal structure, how far shall I seek it? At what
point shall the quest be halted by some discrepant custom, by some
consideration of the social welfare, by my own or the common standards of justice and morals?211
Schwartz argues that Cardozo's questions be utilized as guides to
research, a model that may "tap into the subjective world of the judge"
and more accurately reflect their thought processes.212An eye toward
the complexity of such processes, as suggested by Cardozo's references
to the mix of precedent, logical consistency, social welfare, and his own
standards of justice and morals, is reflected in Pritchett's admonition,
"It is just as false to argue that judges freely exercise their discretion as
to contend that they have no policy functions at all."213
Wade's theory that the tort of intentional infliction of emotional
distress may grow to include the various dignitary torts cannot be
proven or disproven. In the short term, the tort appears to perform a
crack-filling function within the law as it gains increasing acceptance
among jurists and counsel. However, as the tort works interstitially, it
209. Wade. supra note 1, at 1 125.
210. Turkel, Testing Durkheim, 13 LAW& SOC'YREV. 721, 736-37 (1979). The recognition
that some framework must be established to suggest specific hypotheses for the study of social
change as a causal variable in relation to judicial behavior is similarly stressed by Dienes. Dienes,
Judges, Legislators and Social Change, reprinted in T. NAGLE,LAWAND SOCIAL
CHANGE
33
(1970).
Supra note 17 1, at 10.
21 1 . B. CARDOZO,
OF JUDICIAL
212. Schwartz, A Proposed Focusfor Research on Jua'icial Behavior, FRONTIERS
RESEARCH
489, 490 (J. Grossman & J. Tamenhaus eds. 1969).
213. C.H. PRITCHETT,
supra note 184, at 42.
62
Washburn Law J o u d
[Vol.23
overlaps-r
has the significant potential to overlapthe fields of defamation and privacy law.
Regardless of the manner of development, changes should be of
significant concern to journalists. The interstitial function allows for
increased liability, while social science research into factors which may
indicate the direction of such development is inadequate.
Use of the emotional distress tort against media increased modestly but significantly between 1977 and 1981, though use of the tort
remains surprisingly low. Defamation continues to be the theory of
choice among plaintiffs. Defamation pleadings increased over the period to ninety-four percent of the 144 cases in 1981. At the same time,
multiply pled complaints (mostly combinations of defamation and privacy) increased significantly from 5.9 percent to almost one-fourth of
the cases. Privacy pleadings, particularly false light and pleas based on
statutes, also increased significantly, to thirty percent of the 1981 cases.
The increasing association between privacy and defamation law indicates support for the first stage of Wade's theory: dominance of defamation law by privacy theory. Also indicated by the evidence is a
conscious use by plaintiffs of multiple pleadings in order to avoid pretrial losses.214
There also exists evidence that relatively more successful and sophisticated members of the plaintiffs' bar utilize the emotional distress
tort. The nine states in which distress pleadings arose produce half the
cases examined.215These states also produce more wins for plaintiffs,
particularly in actions involving invasions of privacy, pled either singly
or with defamation.
Though empirical evidence is scant, some studies216indicate the
existing law of privacy does not protect everything the public considers
an invasion of privacy. If true, such a discrepancy might influence
either use of the emotional distress tort to cover those areas or expansion of privacy law. The latter might require a break from the categories formulated by Prosser.
If anything, the above cases demonstrate a field of tort law in flux.
Some courts disagree over the proper application of particular theories
or standards and sometimes borrow one standard to apply in an action
under a different tort theory. Given the intimate relationships between
the interests protected by the defamation, privacy, and emotional distress torts, this seems entirely understandable.
The cases also indicate, though one action might stand while another falls due to particular circumstances, the infiction of emotional
214. See supra Table 7, notes 77-81 and accompanying text.
215. See supra Table 8, notes 82 & 83 and accompanying text.
216. See supra notes 200 & 202.
19831
Suing the Media
63
distress tort need not raise fears of opening a huge new area of claims.
The stringent pleading requirements generally make this claim more
difficult to maintain than a claim for damages under defamation or
invasion of privacy. On the other hand, time limitation~,~17
technical
pleading requirements,218an unusual fact situation,219and the opportunity to exploit jury sympathy22O may encourage use of the emotional
distress tort. Considering the tendencies of courts to treat the separate
cause of action for emotional distress as merely a plea for damages
under another tort, and vice versa, with the tendency illustrated above
for combined actions to rise and fall together, it seems logical the prudent attorney would plead the separate cause of action as automatically
as her counterpart of twenty or forty years ago should have sought
damages for emotional distress.
As for Wade's theory, considerable research is needed. As
Schwartz suggests,221one focus of such research should be the judicial
decision-making process, particularly the manner in which judges incorporate public opinion into their decisions. Another focus, and basic
to the above, is the correlation of public opinion and legal protections.
Discrepancies, where they exist, should have an effect, partly through
judicial policy-making, on long-tern1 development of the law.